Ancient Society. Lewis H. Morgan 1877

Chapter XII
The Roman Curia, Tribe and Populus

Having considered the Roman gens, it remains to take up the curia composed of several gentes, the tribe composed of several curiae, and lastly the Roman people com- posed of several tribes. In pursuing the subject the inquiry will be limited to the constitution of society as it appeared from the time of Romulus to that, of Servius Tullius, with some notice of the oranges which occurred in the early period of the republic while the gentile system was giving way, and the new political system was being established.

It will be found that two governmental organizations were in existence for a time, side by side, as among the Athenians, one going out and the other coming in. The first was a society (societas), founded upon the gentes; and the other a state (civitas), founded upon territory and upon property, which was gradually supplanting the former. A government in a transitional stage is necessarily complicated, and therefore difficult to be understood. These changes were not violent but gradual, commencing with Romulus and substantially completed, though not perfected; by Servius Tullius; thus embracing a supposed period of nearly two hundred years, crowded with events of great moment to the infant commonwealth. In order to follow the history of the gentes to the overthrow of their influence in the state it will be necessary, after considering the curia, tribe and nation, to explain: briefly the new political system. The last will form the subject of the ensuing chapter.

Gentile society among the Romans exhibits four stages of organization; first, the gens, which was a body of consanguinei and the unit of the social system; second, the curia, analogous to the Grecian phratry, which consisted of ten gentes united in a higher corporate body; third, the tribe, consisting of ten curiae, which possessed some of the attributes of a nation under gentile institutions; and fourth the Roman people (Populus Romanus), consisting, in the time of Tullus Hostilius of three such tribes united by coalescence in one gentile society, embracing three hundred gentes. There are facts warranting the conclusion that, all the Italian tribes were similarly organized at the commencement of the historical period; but, with this difference, perhaps, that, the Roman curia was a more advanced organization than the Grecian phratry, or the corresponding phratry of the remaining Italian tries; and that the Roman tribe, by constrained enlargement, became a more comprehensive organization than in the remaining Italian stocks. Some evidence in support of these statements will appear in the sequel.

Before the time of Romulus the Italians, in their various branches, had become a numerous people. The large number of petty tries, into which they had become sub- divided, reveals that state of unavoidable disintegration which accompanies gentile institutions. But the federal principle had asserted itself among the other Italian tribes as well as the Latin, although it did not result in any confederacy that achieved important results. Whilst this state of things existed, that great movement ascribed to Romulus occurred, namely: the concentration of a hundred Latin gentes on the banks of the Tiber, which was followed by a like gathering of Sabine, Latin and Etruscan and other gentes, to the additional number of two hundred, ending in their final coalescence into one people. The foundations of Rome were thus laid, and Roman power and civilization were to follow. It was this consolidation of gentes and tribes under one government, commenced by Romulus and completed by his successors, that prepared the way for the new political system — for the transition from a government based upon persons and upon personal relations, into one based upon territory and upon property. It is immaterial whether either of the seven so called kings of Rome were real or mythical persons, or. whether the legislation ascribed to either of them is fabulous or true, so far as this investigation is concerned because the facts with respect to the ancient constitution of Latin society remained incorporated in Roman institutions, and thus came down to the historical period. It, fortunately so, happens that the events of human progress embody themselves, independently of particular men, in a material record, which is crystallized in institutions, usages and custom, and preserved in inventions and discoveries. Historians, from a sort of necessity, give to individuals great prominence in the production of events; thus placing persons, who are transient, in the place of principles, which are enduring. The work of society in its totality, by means of which all progress occurs, is ascribed far too niche to individual men, and far too little to the public intelligence. It will be recognized generally that the substance of human history is bound up in the growth of ideas, which are wrought out by the people and expressed in their institutions, usages, inventions and discoveries.

The numerical adjustment, before adverted to, of ten gentes to a curia, ten curiae to a tribe, and three tribes of the Roman people, was a result of legislative procurement not older, in the first two tribes, than the time of Romulus. It was made possible by the accessions gained from the surrounding tribes, by solicitation or conquest; the fruits of which were chiefly incorporated in the Tities and Luceres, as they were successively formed. But such a precise numerical adjustment could not, be permanently maintained through centuries, especially with respect to the number of gentes in each curia.

We have seen that the Grecian phratry was rather a religious and social than a governmental organization. Holding an intermediate position between the gens and the tribe, it would be less important than either, until governmental functions were superadded. It appears among the Iroquois in a rudimentary form, its social as distinguished from its governmental character being at that early day equally well marked. But the Roman curia, whatever it may have been in the previous period, grew into an organization more integral and governmental than the phratry of the Greeks; more is known, however, of the former than of the latter. It is probable that the- gentes comprised in each curia were, in the main, related gentes; and that their reunion in a higher organization was further cemented by inter-marriages, the gentes of the same curia furnishing each other with wives.

The early writers give no account of the institution of the curia; but it does not follow that it was a new creation by Romulus. It is first mentioned as a Roman institution in connection with his legislation, the number of curiae in two of the tribes having been established in his time. The organization, as a phratry, had probably existed among the Latin tribes from time immemorial.

Livy, speaking of the favour with which the Sabine women were regarded after the establishment of peace between the Sabines and Latins through their intervention, remarks that Romulus, for this reason, when he had divided the people into thirty curiae bestowed upon them their names.[1] Dionysius uses the term phratry as the equivalent of curia, but gives the latter also[2] and observes further that Romulus divided the curia into decades, the ten in each being of course gentes.[3] In like manner Plutarch refers to the fact that each tribe contained ten curiae, which some say, he remarks, were called after the Sabine women.[4] He is more accurate in the use of language than Livy or Dionysius in saying that each tribe contained ten curiae, rather than that each was divided into ten, because the curiae were made of gentes as original unities, and not the gentes out of a curia by subdivision. The work performed by Romulus was the adjustment of the number of gentes in each curia, and the number of curia in each tribe, which he was enabled to accomplish through the accessions gained from the surrounding tribes. Theoretically each curia should have been composed of gentes derived by segmentation from one or more gentes, and the tribe by natural growth through the formation of more than one curia, each composed of gentes united by the bond of a common dialect. The hundred gentes of the Ramnes were Latin gentes. In their organization into ten curiae, each composed of ten gentes. Romulus undoubtedly respected the bond of kin by placing related gentes in the same curia, as far as possible, and then reached numerical symmetry by arbitrarily taking the excess of gentes from one natural curia to supply the deficiency in another. The hundred gentes of the tribe Tities were, in the main, Sabine gentes. These were also arranged in ten curiae, and most likely on the same principle. The third tribe, the Luceres, was formed later from gradual accessions and conquests. It was heterogeneous in its elements, containing, among others, a number of Etruscan gentes. They were brought into the same numerical scale of ten curiae each composed of ten gentes. Under this re-constitution, while the gens, the unit of organization, remained pure and unchanged, the curia was raised above its logical level, and made to include, in some cases, a foreign element which did not belong to a strict natural phratry; and the tribe also was raised above its natural level, and made to embrace foreign elements that did not belong to a tribe as the tribe naturally grew. By this legislative constraint the tribes, with their curiae and gentes, were made severally equal, while the third tribe was in good part an artificial creation under the pressure of circumstances. The linguistic affiliations of the Etruscans are still a matter of discussion. There is a presumption that their dialect was not wholly unintelligible to the Latin tribes, otherwise they would not have been admitted into the Roman social system; which at the time was purely gentile. The numerical proportions thus secured, facilitated the governmental action of the society as a whole.

Niebuhr, who was the first to gain a true conception of the institutions of the Romans in this period, who recognized the fact that the people were sovereign that the so-called kings exercised a delegated power, and that the senate was based on the principle of representation, each gens having a senator; became at variance with the facts before him in stating in connection with this graduated scale, that ‘such numerical proportions are an irrefragable proof that the Roman houses [gentes][5] were not more ancient than the constitution; but corporations formed by a legislator in harmony with the rest of his scheme.’[6] That a small foreign element was forced into the curiae of the second and third tribes, and particularly into the third, is undeniable; but that a gens was changed in its composition or reconstructed or made, was simply impossible. A legislator could not make a gens; neither could he make a curia, except by combining existing gentes around a nucleus of related gentes; but he might increase or decrease by constraint the number of gentes in a curia, and increase or decrease the number of curiae in a tribe. Niebuhr has also shown that the gens was an ancient and universal organization among the Greeks and Romans, which renders his preceding declaration the more incomprehensible. Moreover it appears that the phratry was universal, at least among the Ionian Greeks, leaving it probable that the curia, perhaps under another name, was equally ancient among the Latin tribes. The numerical proportions referred to were no doubt the result of legislative procurement in the time of Romulus, and we have abundant evidence of the sources from which, the new gentes were obtained with. which these proportions might have been produced.

The members of the ten gentes united in a curia were called curiales among themselves. They elected a priest, curio, who was the chief officer of the fraternity. Each curia had its sacred rites, in the observance of which the brotherhood participated, its sacellum, as a place of worship, and its place of assembly where they met for the transaction of business. Besides the curio, who had the principal charge of their religious affairs, the curiales also elected an assistant priest, flamen curialis, who had the immediate charge of these observances. The curia gave its name to the assembly of the gentes, the comitia curiata, which was the sovereign power in Rome to a greater degree than the senate under the gentile system. Such, in general terms, was the organization of the Roman curia or phratry..[7]

Next in the ascending scale was the Roman tribe, composed of ten curiae and a hundred gentes. When a natural growth, uninfluenced externally, a tribe would be an aggregation of such gentes as were derived by segmentation from an original gens or pair of gentes; all the members of which would speak the same dialect. Until the tribe itself divided, by processes before pointed out, it would include all the descendants of the members of these gentes. But, the Roman tribe, with which alone we are now concerned, was artificially enlarged for special objects and by special means, but the basis and body of the tribe was a natural growth.

Prior to the time of Romulus each tribe elected a chief officer whose duties were magisterial, military and religious; [8] He performed in the city magisterial duties for the tribe, as well as administered its sacra, and he also commanded its military forces in the field.[9] He was probably elected by the curiae collected in a general assembly; but here again our information is defective. It was undoubtedly an ancient office in each Latin tribe, peculiar in character and held by an elective tenure. It was also the germ of the still higher office of rex, or general military commander, the functions of the two offices being similar. The tribal chiefs are styled by Dionysius leaders of the tribes.[10] When the three Roman tribes had coalesced into one people, under one senate, one assembly of the people, and one military commander, the office of tribal chief was overshadowed and became less important; but the continued maintenance of the office by an elective tenure confirms the inference of its original popular character.

An assembly of the tribe must also have existed, from a remote antiquity. Before the founding of Rome each Italian tribe was practically independent, although the tribes were more or less united in confederate relations. As a self-governing body each of these ancient tribes had its council of chiefs (who were doubtless the chiefs of the gentes) its assembly of the people, and its chiefs who commanded its military bands. These three elements in the organization of the tribe; namely, the council, the tribal chief; and the tribal assembly, were the types upon which were afterwards modelled the Roman Senate, the Roman rex, and the comitia curiata. The tribal chief was in all probability called by the name of rex before the foundling of Rome; and the same remark is applicable to the name of senators (senex), and the comtia (con-ire). The inference arises, from what is known of the condition and organization of these tribes, that their institutions were essentially democratical. After the coalescence of the three Roman tribes, the national character of the tribe was lost in the higher organization; but it still remained as a necessary integer in the organic series.

The fourth and last stage of organization was the Roman nation or people, formed, as stated, by the coalescence of three tribes. Externally the ultimate organization was manifested by a senate (senates), a popular assembly (comitia curiata), and a general military commander (rex). It was further manifested by a city magistracy, by an army organization, and by a common national priesthood of different orders.[11]

A powerful city organization was from the first the central idea of their governmental and military systems, to which all areas beyond Rome remained provincial. Under the military democracy of Romulus, under the mixed democratical and aristocratical organization of the republic, and under the later imperialism it was a government with a great city in its centre, a perpetual nucleus, to which all additions by conquest were added as increments, instead of being made, with the city, common constituents of the government. Nothing precisely like this Roman organization, this Roman power, and the career of the Roman race, has appeared in the experience of mankind. It will ever remain the marvel of the ages. As organized by Romulus they styled themselves the Roman People (Poulus Romanus), which was perfectly exact. They had formed a gentile society and nothing more. But the rapid increase of numbers in the time of Romulus, and the still greater increase between this period and that of Servius Tullius, demonstrated the necessity for a fundamental change in the plan of government. Romulus and the wise men of his time had made the most of gentile institutions. We are indebted to his legislation for a grand attempt to establish upon the gentes a great national and military power; and thus for some knowledge of the character and structure of institutions which might otherwise have faded into obscurity, if they had not perished from remembrance. The rise of the Roman power upon gentile institutions was a remarkable event in human experience. It is not singular that the incidents that accompanied the movement should have come to us tinctured with romance, not to say enshrouded in fable. Rome came into existence through a happy conception, ascribed to Romulus, and adopted by his successors, of concentrating the largest possible number of gentes in a new city, under one government, and with their united military forces under one commander. Its objects were essentially military; to gain a supremacy in Italy, and it is not surprising that the organization took the form of a military democracy.

Selecting a magnificent situation upon the Tiber, where after leaving the mountain range it had entered the campagna, Romulus occupied the Palatine Hill, the site of an ancient fortress, with a tribe of the Latins of which he was the chief. Tradition derived his descent from the chiefs of Alba, which is a matter of secondary importance. The new settlement grew with marvellous rapidity, if the statement is reliable that at the close of his life the military forces numbered 46,000 foot and 1,000 horse, which would indicate some 200,000 people in the city and in the surrounding region under its protection. Livy remarks that it was an ancient, device (vetus consilium) of the founders of cities to draw to themselves an obscure and humble multitude, and then set up for their progeny the autochthonic claim. Romulus pursuing this ancient policy is said to have opened an asylum near the Palatine, and to have invited all persons in the surrounding tribes, without regard to. character or condition, to share with his tribe the advantages and the destiny of the new city. A great crowd of people, Livy further remarks, fled to this place from the surrounding territories, slave as well as free, which was the first accession of foreign strength to the new undertaking.[13] Plutarch,[14] and Dionysius[15] both refer to the asylum or grove, the opening of which, for the object and with the success named, was an event of probable occurrence. It tends to show that the people of Italy had then become numerous for barbarians, and that discontent prevailed among them in consequence, doubtless, of the imperfect protection of personal rights, the existence to domestic slavery, and the apprehension of violence. Of such a state of things a wise man would naturally avail himself if he possessed sufficient military genius to handle the class of men thus brought together. The next important event in this romantic narrative, of which the reader should be reminded, was the assault of the Sabines to avenge the entrapment of the Sabine virgins, now the honoured wives of their captors. It resulted in a wise accommodation under which the Latins and Sabines coalesced into one society, but each division retaining its own military leader. The Sabines occupied the Quirinal and Capitoline Hills. Thus was added the principal part of the second tribe, the Tities, under Titius Tatius their military chief. After the death of the latter they all fell under the military command of Romulus.

Passing over Numa Pompilius, the successor of Romulus, who established upon a broader scale the religious institutions of the Romans, his successor, Tullus Hostilius, captured the Latin city of Alba and removed its entire population to Rome. They occupied the Coelian Hill, with all the privileges of Roman citizens. The number of citizens was now doubled. Livy remarks[16] but not likely from this source exclusively, Ancus Martius, the successor of Tullus, captured the Latin city of Politorium, and following the established policy, transferred the people bodily to Rome.[17] To them was assigned the Aventine Hill, with similar privileges. Not long afterwards the inhabitants of Tellini and Ficana were subdued and removed to Rome, where they also occupied the Aventine.[18] It will be noticed that in each case the gentes brought to Rome, as well as the original Latin and Sabine gentes, remained locally distinct. It was the universal usage in gentile society, both in the Middle and in the Upper Status of barbarism, when the tribes began to gather in fortresses and in walled cities, for the gentes to settle locally together by gentes and by phratries.[19] Such was the manner the gentes settled at Rome. The greater portion of these accessions were united in the third tribe, the Luceres, which gave it a broad basis of Latin gentes. It was not entirely filled until the time of Tarquinius Priscus, the fourth military leader from Romulus, some of the new gentes being Etruscan.

By these and other means three hundred gentes were gathered at Rome and there organized in curiae and tribes, differing somewhat in tribal lineage; for the Ramnes, as before remarked, were Latins, the Tities were in the main Sabines and the Luceres were probably in the main Latins with large accessions from other sources. The Roman people and organization thus grew into being by a more or less constrained aggregation of gentes into curiae, of curiae into tribes, and of tribes into one gentile society. But a model for each integral organization, excepting the last, had existed among them and their ancestors from time immemorial; with a natural basis for each curia in the kindred gentes actually united in each, and a similar basis for each tribe in the common lineage of a greater part of the gentes united in each, All that was new in organization: was the numerical proportions of gentes to a curia, of curiae to a tribe, and the coalescence of the latter into one people. It may be called a growth under legislative constraint, because the tribes thus formed were not entirely free from the admixture of foreign elements; whence arose the new name tribus=a third part of the people, which now came in to distinguish this organism. The Latin language must have had a term equivalent to the Greek phylon=tribe, because they had the same organization; but if so it has disappeared. The invention of this new term is some evidence that the Roman tribes contained heterogeneous elements, while the Grecian were pure, and kindred in the lineage of the gentes they contained.

Our knowledge of the previous constitution of Latin society is mainly derived from the legislation ascribed to Romulus, since it brings into view the anterior organization of the Latin tribes, with such improvements and modifications as the wisdom of the age was able to suggest; It is seen in the senate as a, council of chiefs, in the, comitia curiata, as an assembly of the people by curiae, in the office of a general military commander, and in the ascending series of organizations. It is seen more especially in the presence of the gentes, with their recognized rights, privileges and obligations. Moreover, the government instituted by Romulus and perfected by his immediate successors presents gentile society in the highest structural form it ever attained in any portion of the human family. The time referred to was immediately before the institution of political society by Servius Tullius.

The first momentous act of Romulus, as a legislator, was the institution of the Roman senate. It was composed of a hundred members, one from each gens, or ten from each curia. A council of chiefs as the primary instrument of government was not a new thing among the Latin tribes. From time immemorial they had been accustomed to its existence and to its authority. But it is probable that prior to the time of Romulus it had become changed, like the Grecian councils, into a pre-considering body, obligated to prepare and submit to an assembly of the people the most important public measures for adoption or rejection. This was in effect a resumption by the people of powers before vested in the council of chiefs. Since no public measure of essential importance could become operative until it received the sanction of the popular assembly, this fact alone shows that the people were sovereign, and not the council, nor the military commander. It reveals also the extent to which democratic principles had penetratecl their social system. The senate instituted by Romulus, although its functions were doubtless substantially similar to those of the previous council of chiefs, was an advance upon it in several respect.[20] It was made up either of the chiefs or of the wise men of the gentes. Each gens, as Niebuhr remarks, ‘sending its decurion who was its alderman,’ to represent it in the senate. It was thus a representative and an elective body in its inception, and it remained elective, or selective, down to the empire. The senators held their office for life, which was the only term of office then known among them, and therefore not singular. Livy ascribes the selection of the first, senators to Romulus, which is probably an erroneous statement, for the, reason that it would not have been in accordance with the theory of their institutions. Romulus chose a hundred senators, he remarks, either because that number was sufficient, or because there were but a hundred who could be created Fathers. Fathers certainly they were called on account of their official dignity, and their descendants were called patricians.[21] The character of the senate as a representative body, the title of Fathers of the People bestowed upon its members, the life tenure of the office, but; more than all these considerations, the distinction of patricians conferred upon their children and lineal descendants in perpetuity, established at a stroke an aristocracy of rank in the centre of their social, system where it became firmly intrenched. The Roman senate, from its high vocation, from its composition, and from the patrician rank received, by its members and transmitted to their descendants, held a powerful position in the subsequent state. It was this aristocratic element, now for the first time planted in gentilism, which gave to the republic its mongrel character, and which, as might have been predicted culminated in imperialism, and with it, in the final dissolution of the race. It may perhaps have increased the military glory and extended the conquests of Rome, whose institutions, from the first, aimed at a military destiny; but it shortened the career of this great and extraordinary people, and demonstrated the proposition that imperialism of necessity will destroy any civilized race. Under the republic, half aristocratic, half democratic, the Romans achieved their fame which one can but think would have been higher in degree, and more lasting in its fruits, had liberty and equality been nationalized, instead of unequal privileges and an atrocious slavery. The long protracted struggle of the plebeians to eradicate the aristocratic element, represented by the senate, and to recover the ancient principles of democracy must be classed among the heroic labours of mankind.

After the union of the Sabines the senate was increased to two hundred by the addition of a hundred senators[22] from the gentes of the tribe Tities, and when the Luceres had increased to a hundred gentes in the time of Tarquinius, Priscus, a third hundred senators were added from the gentes to this tribe.[23] Cicero has left some doubt upon this statement of Livy, by saying that Tarquinius Priscus doubled the original number of the senators.[24] But Schmitz well suggests, as an explanation of the discrepancy, that “at the time of the final increase the senate may have become reduced to a hundred and fifty members, and been filled up to two hundred from the gentes of the first two tribes, when the hundred were added from the third.” The senators taken from the tribes Ramnes and Tities were thenceforth called Fathers of the Greater Gentes (patres maiorum gentium), and those of the Luceres Fathers of the Lesser Gentes (patres minorum gentium).[25] From the form of the statement the inference arises that the three hundred senators represented the three hundred gentes, each senator representing a gens. Moreover, as each gens doubtless had its principal chief (princeps), it becomes extremely probable that this person was chosen for the position either by his gens, or the ten were chosen together by the curia, from the ten gentes of which it was composed. Such a method of representation and of choice is most, in accordance with what is known of Roman and gentile institutions.[26] After the establishment of the republic, the censors filled the vacancies in the senate by their own choice, until it was devolved upon the consuls. They were generally selected from the ex-magistrates of the higher grades. The powers of the senate were real and substantial. All public measures originated in this body — those upon which they could act independently, as well as those which must be submitted to the popular assembly and be adopted before they could become operative. It had the general guardianship of the public welfare, the management of their foreign relations, the levying of taxes and of military forces, and the general control of revenues and expenditures. Although the administration of religious affairs belonged to the several colleges of priests, the senate had the ultimate power over religion as well. From its functions and vocation it was the most influential body which ever existed under gentile institutions. The assembly of the people, with the recognized right of acting upon important public measures to be discussed by them and adopted’ or rejected, was unknown in the Lower, and probably in the Middle Status of barbarism; but it existed in the Upper Status, in the agora of the Grecian tribes, and attained its highest form in the ecclesia of the Athenians; and it also existed in the assembly of the warriors among the Latin tribes, attaining its highest form in the comitia curiata of the Romans, The growth of property tended to the establishment of the popular assembly, as a third power in gentile society, for the protection of personal rights and as a shield against the encroachments of the council of chiefs, and of the military commander. From the period of savagery, after the institution of the gentes, down to the times of Solon and Romulus, the popular element had always been active in ancient gentile society. The council of chiefs was usually open in the early conditions to the orators of the people, and public sentiment influenced the course of events. But when the Grecian and Latin tribes first, came under historical notice the assembly of the people to discuss and adopt or reject public measures was a phenomenon quite as constant as that of a council of chiefs. It was more perfectly systematized among the Romans under the constitution of Romulus than among the Athenians in the time of Solon. In the rise and progress of this institution may be traced the growth and development of the democratic principle.

This assembly among the Romans was called the comitia curiata, because the members of the gentes of adult age met in one assembly by curiae, and voted in the same manner. Each curia had one collective vote, the majority in each was ascertained separately, and determined what that vote should be.[27] It was the assembly of the gentes, who alone were members of the government. Plebeians and clients, who already formed a numerous class, were excluded, because there could be no connection with the Populus Romanus, except through a gens and tribe. This assembly, as before stated, could neither originate public measures, nor amend such as were submitted to them; but none of a certain grade could become operative until adopted by the comitia. All laws were passed or repealed by this assembly; all magistrates and high public functionaries, including the rex were elected by it on the nomination of the senate. The imperium was conferred upon these persons by a law of the assembly (lex curitae de imperio), which was the Roman method of investing with office. Until the imperium was thus conferred, the person, although the election was complete, could not enter upon his office. The comitia curiata, by appeal, had the ultimate decision in criminal cases involving the life of a Roman citizen. It was by a popular movement that the office rex was abolished. Although the assembly of the people never acquired the power of originating measures, its powers were real and influential. At this time the people were sovereign.

The assembly had no power to convene itself; but it, is said to have met on the summons of the rex, or, in his absence, on that of the praefect (praefectus urbi). In the time of the republic it was convened by the consuls, or in their absence, by the praetor; and in all cases the person who convened the assembly presided over its deliberations.

In another connection the office of rex has been considered. The rex was a general and also a priest, but without civil functions, as some writers have endeavoured to imply.[29] His powers as a general, though not defined, were necessarily absolute over the military forces in the field and in the city. If he exercised any civil powers in particular cases, it must be supposed that they were delegated for the occasion. To pronounce him a king, as that term is necessarily understood, is to vitiate and mis-describe the popular government to which he belonged, and the institutions upon which it rested. The form of government under which the rex and basileus appeared is identified with gentile institutions and disappeared after gentile society was overthrown. It was a peculiar organization having no parallel in modern society, and is unexplainable in terms adapted to monarchical institutions. A military democracy under a senate, an assembly of the people, and a general of their nomination and election, is a near, though it may not be a perfect characterization of a government so peculiar, which belongs exclusively to ancient society, and rested on institutions essentially democratical. Romulus, in all probability, emboldened by his great successes, assumed powers which were regarded as dangerous to the senate and to the people, and his assassination by the Roman chiefs is a fair inference from the statements concerning his mysterious disappearance which have come down to us. This act, atrocious as it must be pronounced, evinces that spirit of independence, inherited from the gentes, which would not submit to arbitrary individual power. When the office was abolished, and the consulate was established in its place, it is not surprising that two consuls were created instead of one. While the powers of the office might raise one man to a dangerous height, it could not be the case with two. The same subtlety of reasoning led the Iroquois, without original experience, to create two war-chiefs of the confederacy instead of one, lest the office of commander-in-chief, bestowed upon a single man, should raise him to a position too influential. In his capacity of chief priest the rex took the auspices on important occasions, which was one of the highest acts of the Roman religious system, and in their estimation quite as necessary in the field on the eve of a battle as in the city. He performed other religious rites as well. It is not surprising that in those times priestly functions are found among the Romans, as among the Greeks, attached to or inherent in the highest military office. When the abolition of this office occurred, it was found necessary to vest in some one the religious functions appertaining to it, which were evidently special; whence the creation of the new office of rex sacrificulus, or rex sacrorum, the incumbent of which performed the religious duties in question. Among the Athenians the same idea reappears in the second of the nine archons, who was called archon basileus, and had a general supervision of religious affairs. Why religious functions were attached to the office of rex and basileus, among the Romans and Greeks, and to the office of Teuctli among the Aztecs; and why, after the abolition of the office in the two former cases, the ordinary priesthoods could not perform them, has not been explained.

Thus stood Roman gentile society from the time of Romulus to the time of Servius Tullius, through a period of mare than two hundred years, during which the foundations of Raman power were laid. The government; as before remarked, consisted of three powers, a senate, an assembly of the people, and a military commander. They had experienced the necessity for definite written laws to be enacted by themselves, as a substitute for usages and customs. In the rex they had the germinal idea of a chief executive magistrate, which necessity pressed upon them, and which was to advance into a more complete form after the institution of political society. But they found it a dangerous office in those times of limited experience in the higher conceptions of government; because the powers of the rex were, in the main, undefined, as well as difficult of definition. It is not surprising that when a serious controversy arose between the people and Tarquinius Superbus, they deposed the man and abolished the office. As soon as something like the irresponsible power of a king met them face to face it was found incompatible with liberty and the latter gained the victory. They were willing, however, to admit into the system of government a limited executive, and they created the office in a dual form in the two consuls. This occurred after the institution of political society.

No direct steps were taken, prior to the time of Servius Tullius, to establish a state founded upon territory and upon property; but the previous measures were a preparation for that event. In addition to the institutions named, they had created a city magistracy, and a complete military system, including the institution of the equestrian order. Under institutions purely gentile Rome had become, in the time of Servius Tullius, the strongest military power in Italy.

Among the new magistrates created, that of warden of the city (custos urbis) was the most important. This officer, who was chief of the senate (princes senatus), was, in the first instance, according to Dionysius, appointed by Romulus.[30] The senate, which had no power to convene itself, was convened by him. It is also claimed that the rex had power to summon the senate. That it would be apt to convene upon his request, through the call of its own officer, is probable; hut that he could command its convocation is, improbable, from its independence in functions, from its dignity, and from its representative character. After the time of the Decemvirs the name of the office was changed to praefectus urbi of the city, its powers were enlarged, and it was made elective by the new comitia centuraiata. Under the republic, the consuls, and in their absence, the praetor, had power to convene the senate; and also to hold the comitia. At a later day, the office of praetor (praetor urbanus) absorbed the functions of this ancient office and became its successor. A judicial magistrate, the Roman praetor was the prototype of the modern judge. Thus, every essential institution in the government or administration of the affairs of society may generally be traced to a simple germ, which springs up in a rude, form from human wants, and when able to endure the test of time and experience, is developed into a permanent institution.

A knowledge of the tenure of the office of chiefs, and of the functions of the council of chiefs, before the time of Romulus, could they be ascertained, would reflect much light upon the condition of Roman gentile society in the time of Romulus: Moreover, the several periods should be studied separately, because the facts of their social conditions were changing with their advancement in intelligence. The Italian period prior to Romulus, the period of the seven reges; and the subsequent periods of the republic and of the empire are marked by great differences in the spirit and character of the government. But the institutions of the first period entered into the second, and these again were transmitted into the third, and remained with modifications with the fourth. The growth, development and fall of these institutions embody the vital history of the Roman people. It is by: tracing: these institutions from the germ through their successive stages of growth; on the wide scale of the tribes and nations of mankind, that we can follow the great movements of the human mind in its evolution from its infancy in savagery to its present high development. Out of the necessities of mankind for the organization of society came the gens; out of the gens came the chief ad the tribe with its council of chiefs; out of the tribe came by segmentation the group of tribes, afterwards re-united in a confederacy, and finally consolidated by coalescence into a nation; out of the experience of the council came the necessity of an assembly of the people with a division of the powers of the government between them; and finally, out of the military necessities of the united tribes came the general military commander, who became in time a third power in the government, but subordinate to the two superior powers. It was the germ of the office of the subsequent chief magistrate, the king and the president. The principal institutions of civilized nations are simply continuations of those which germinated in savagery, expanded in barbarism, and which are still subsisting and advancing in civilization.

As the Roman government existed at the death of Romulus, it was social, and not political; it was personal, and not territorial. The three tribes were located, it is true, in separate and distinct areas within the limits of the city; but this was the prevailing mode of settlement under gentile institutions. Their relations to each other and to the resulting society, as gentes, curiae and tribes, were wholly personal, the government dealing with them as groups of persons, and with the whole as the Roman, people. Localized in this manner within inclosing ramparts, the idea of a township or city ward would suggest itself, when the necessity for a change in the plan of government was forced upon them by the growing complexity of affairs. It was a great change that was soon to be required of them, to be wrought out through experimental legislation — precisely the same which the Athenians had entered upon shortly before the time of Servius Tullius. Rome was founded, and its first victories were won under institutions purely gentile, but the fruits of these achievements by their very magnitude demonstrated the inability of the gentes to form the basis of a state. But it required two centuries of intense activity in the growing commonwealth to prepare the way for the institution of the second great plan of government based upon territory and upon property. A withdrawal of governing powers from the gentes; curiae and tribes, and their bestowal upon new constituencies was the sacrifice demanded. Such a change would become possible, only through a conviction that the gentes could not be made to yield such a form of government as their advanced condition demanded. It was practically a question of continuance in barbarism, or progress into civilization. The inauguration of the new system will form the subject of the next chapter.


1. Livy, i, 13.

2. Dionys., “Antiq. of Rome;” ii, 7.

3. Dionys; ii, 7.

4. Plutarch,Vit. Romulus,” cap. 20.

5. Whether Niebuhr used the word ‘house’ in the place of gens, or it is a conceit of the translators, I am unable to state. Thirlwall, one of the translators, applies this term frequently to the Grecian gens, which at best is objectionable.

6. “History of Rome,” i, 244.

7. Dionysius has given a definite and circumstantial analysis of the organization ascribed to Romulus, although a portion of it seems to belong to a later period. It is interesting from the parallel he runs between the gentile institutions of the Greeks, with which he was equally familiar, and those of the Romans. In the first place, he remarks, I will speak of the order of his polity which I consider the most sufficient of all political arrangements in peace, and also in time of war. It was as follows: After dividing the whole multitude into three divisions, he appointed the most prominent man as a leader over each of the divisions; in the next place dividing each of the three again into ten, he appointed the bravest men leaders, having equal rank; and he called the greater divisions tribes, and the less, curia as they are also still called according to usage. And these names interpreted in the Greek tongue would be the ‘tribus,’ a third part, a phyle, the ‘curia,’ a phratry, and also a band; and those men who exercised the leadership of the tribes were both phylarchs and trittyarchs, whom the Romans called tribunes; and those who had the command of the curiae both phratriarchs and lochagoi, whom they call curiones. And the phratries were also divided into decades, and a leader called in common parlance a decadarch had command of each. And when all had been arranged into tribes and phratries, he divided the land into thirty equal shares, and gave one full share to each phratry, selecting a sufficient portion for religious festivals and temples, and leaving a certain piece of ground for common use. — “Antiq. of Rome,” ii, 7.

8. Dionysius, ii, 7.

9. Smith’s Dic., 1. c., Art. Tribune.

10. Dionysius, ii, 7.

11. The thirty curiones, as a body, were organized into a college of priests, one of their number holding the office of ‘curio maximus.’ He was elected by the assembly of the gentes. Besides this was the college of augurs, consisting under the Ogulnian law (300 B. C.) of nine members, including their chief officer (’magister collegii’); and the college of pontiffs, composed under the same law of nine members, including the ‘pontifex maximus.’

12. Livy,. i, 8.

13. Eo ex finitimis populis turba omnis sine discrimine, liber an servus esset, avida novarum rerum perfugit; idque primum ad coeptam magnitudinem raboris fuit.- Livy, i, 8.

14. “Vit. Romu1us,” cap. 20.

15. “Antiq;, of Rome,” ii, 15.

16. Livy, i, 30.

17. lb., ip 33.

18. Livy, i,. 38.

19. In the pueblo houses in New Mexico all the occupants of each house belonged to the same tribe, and in some cases a single joint-tenement house contained a tribe. In the pueblo of Mexico there were four principal quarters, as has been shown, each occupied by a lineage, probably a phratry, while the Tlatelulcos occupied a fifth district. At Tlascala there were also four quarters occupied by four lineages; probably phratries.

20. “History of Rome,” i, 258.

21. Centum creat senators: sive quia is numerus satis erat; sive: quia soli centum errant, qui creari Patres possent, Patres certe ab honore, patriciique progenies eorum appellati. -Livy, I, 8. And Cicero: Principes, qui appellati sunt propter caritatem patres. — De Rep., ii, 8.

22. Dionysius, ii, 47.

23. Livy, I, 47.

24. Cicero, “De Rep.,” ii, 20.

25. Cicero,” De Rep.,” ii, 20.

26. This was substantially the opinion of Niebuhr. “We may go further and affirm without hesitation that originally when the number of houses (gentes) was complete, they were represented immediately by the senate, the number of which was proportionate to theirs. The three hundred senators answered to the three hundred houses, which was assumed above on good grounds to be the number of them; each gens sent its decurion, who was its alderman and the president of its meetings to represent it in the senate...... That the senate should be appointed by the kings at their discretion can never have been the original institution. Even Dionysius supposes that there was an election: his notion of it, however, is quite untenable, and the deputies must have been chosen, at least originally, by the houses and not by the curiae.” — “Hist. of Rome,” i. 258. An election by the curiae is, in principle, most probable, if the office did not fail to the chief ‘ex officio,’ because the gentes in a curia had a direct interest in the representation of each gens. It was for the same reason that a sachem elected by the members of an Iroquois gens must be accepted by the other gentes of the same tribe before his nomination was complete.

27. Livy; i, 43. Dionys., ii, 14; iv, 20, 84.

28. Numa Pompillius (Cicero. “De Rep.,” ii, 11; Liv., i, 17) Tullus Hostilius (Cicero, “De Rep.,” ii,. 17.), and Ancus Martius (Cic., “De Rep.,” ii, 18; Livy, i, 32); were elected by the ‘comitia. curiata.’ In the case of Tarquinius Priscus, Livy observes that the people by a great majority elected him ‘rex’ (i 35). It was necessarily by the ‘comitia curiata.’ Servius Tullius assumed the office which was afterwards confirmed by the ‘comitia’ (Cicero, “De Rep,” ii,: 21); The right of election thus reserved to the people, shows that the office of ‘rex’ was a popular one, and that his powers were delegated.

29. Mr. Leonhard Schmitz, one of the ablest defenders of the theory of kingly government among the Greeks and Romans, with great candour remarks: “It is very difficult to determine the extent of the king’s powers, as the ancient writers naturally judged of the kingly period by their own republican constitution; and frequently assigned to the king, the ‘senate, and the ‘comitia of the ‘curiae’ the respective powers and functions which were only true in reference to the consuls, the senate and the ‘comitia’ of their own time.” -.Smith’s “Dic. Gk. & Rom. Antiq., Art. Rex.”

30. Dionys., ii, 12.