The History of Rome - All 5 Volumes in One Edition. Theodor Mommsen
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of the privilege was requisite on the part of the community, while the relation of guest presumed the holding of burgess-rights in a community which had a treaty with Rome. What they did obtain was a legally protected possession of freedom, while they continued to be -de jure- non-free. Accordingly for a lengthened period their relations in all matters of property seem to have been, like those of slaves, regarded in law as relations of the patron, so that it was necessary that the latter should represent them in processes at law; in connection with which the patron might levy contributions from them in case of need, and call them to account before him criminally. By degrees, however, the body of —metoeci— outgrew these fetters; they began to acquire and to alienate in their own name, and to claim and obtain legal redress from the Roman burgess-tribunals without the formal intervention of their patron.
In matters of marriage and inheritance, equality of rights with the burgesses was far sooner conceded to foreigners3 than to those who were strictly non-free and belonged to no community; but the latter could not well be prohibited from contracting marriages in their own circle and from forming the legal relations arising out of marriage—those of marital and paternal power, of -agnatio- and -gentilitas- of heritage and of tutelage—after the model of the corresponding relations among the burgesses.
Similar consequences to some extent were produced by the exercise of the -ius hospitii-, in so far as by virtue of it foreigners settled permanently in Rome and established a domestic position there. In this respect the most liberal principles must have prevailed in Rome from primitive times. The Roman law knew no distinctions of quality in inheritance and no locking up of estates. It allowed on the one hand to every man capable of making a disposition the entirely unlimited disposal of his property during his lifetime; and on the other hand, so far as we know, to every one who was at all entitled to have dealings with Roman burgesses, even to the foreigner and the client, the unlimited right of acquiring moveable, and (from the time when immoveables could be held as private property at all) within certain limits also immoveable, estate in Rome. Rome was in fact a commercial city, which was indebted for the commencement of its importance to international commerce, and which with a noble liberality granted the privilege of settlement to every child of an unequal marriage, to every manumitted slave, and to every stranger who surrendering his rights in his native land emigrated to Rome.
Class of —Metoeci— Subsisting by the Side of the Community
At first, therefore, the burgesses were in reality the protectors, the non-burgesses were the protected; but in Rome as in all communities which freely admit settlement but do not throw open the rights of citizenship, it soon became a matter of increasing difficulty to harmonize this relation -de jure- with the actual state of things. The flourishing of commerce, the full equality of private rights guaranteed to all Latins by the Latin league (including even the acquisition of landed property), the greater frequency of manumissions as prosperity increased, necessarily occasioned even in peace a disproportionate increase of the number of —metoeci—. That number was further augmented by the greater part of the population of the neighbouring towns subdued by force of arms and incorporated with Rome; which, whether it removed to the city or remained in its old home now reduced to the rank of a village, ordinarily exchanged its native burgess-rights for those of a Roman —metoikos—. Moreover the burdens of war fell exclusively on the old burgesses and were constantly thinning the ranks of their patrician descendants, while the —metoeci— shared in the results of victory without having to pay for it with their blood.
Under such circumstances the only wonder is that the Roman patriciate did not disappear much more rapidly than it actually did. The fact of its still continuing for a prolonged period a numerous community can scarcely be accounted for by the bestowal of Roman burgess-rights on several distinguished foreign clans, which after emigrating from their homes or after the conquest of their cities received the Roman franchise—for such grants appear to have occurred but sparingly from the first, and to have become always the more rare as the franchise increased in value. A cause of greater influence, in all likelihood, was the introduction of the civil marriage, by which a child begotten of patrician parents living together as married persons, although without -confarreatio-, acquired full burgess-rights equally with the child of a -confarreatio- marriage. It is at least probable that the civil marriage, which already existed in Rome before the Twelve Tables but was certainly not an original institution, was introduced for the purpose of preventing the disappearance of the patriciate.4 To this connection belong also the measures which were already in the earliest times adopted with a view to maintain a numerous posterity in the several households.5
Nevertheless the number of the —metoeci— was of necessity constantly on the increase and liable to no diminution, while that of the burgesses was at the utmost perhaps not decreasing; and in consequence the —metoeci— necessarily acquired by imperceptible degrees another and a freer position. The non-burgesses were no longer merely emancipated slaves or strangers needing protection; their ranks included the former burgesses of the Latin communities vanquished in war, and more especially the Latin settlers who lived in Rome not by the favour of the king or of any other burgess, but by federal right. Legally unrestricted in the acquiring of property, they gained money and estate in their new home, and bequeathed, like the burgesses, their homesteads to their children and children's children. The vexatious relation of dependence on particular burgess-households became gradually relaxed. If the liberated slave or the immigrant stranger still held an entirely isolated position in the state, such was no longer the case with his children, still less with his grandchildren, and this very circumstance of itself rendered their relations to the patron of less moment. While in earlier times the client was exclusively left dependent for legal protection on the intervention of the patron, the more the state became consolidated and the importance of the clanships and households in consequence diminished, the more frequently must the individual client have obtained justice and redress of injury, even without the intervention of his patron, from the king. A great number of the non-burgesses, particularly the members of the dissolved Latin communities, had, as we have already said, probably from the outset not any place as clients of the royal or other great clans, and obeyed the king nearly in the same manner as did the burgesses. The king, whose sovereignty over the burgesses was in truth ultimately dependent on the good-will of those obeying, must have welcomed the means of forming out of his own -proteges- essentially dependent on him a body bound to him by closer ties.
Plebs
Thus there grew up by the side of the burgesses a second community in Rome: out of the clients arose the Plebs. This change of name is significant. In law there was no difference between the client and the plebeian, the "dependent" and the "man of the multitude;" but in fact there was a very important one, for the former term brought into prominence the relation of dependence on a member of the politically privileged class; the latter suggested merely the want of political rights. As the feeling of special dependence diminished, that of political inferiority forced itself on the thoughts of the free —metoeci—; and it was only the sovereignty of the king ruling equally over all that prevented the outbreak of political conflict between the privileged and the non-privileged classes.
The Servian Constitution
The first step, however, towards the amalgamation of the two portions of the people scarcely took place in the revolutionary way which their antagonism appeared to foreshadow. The reform of the constitution, which bears the name of king Servius Tullius, is indeed, as to its historical origin, involved in the same darkness with all the events of a period respecting which we learn whatever we know not by means of historical tradition, but solely by means of inference from the institutions of later times. But its character testifies that it cannot have been a change demanded by the plebeians, for the new constitution assigned to them duties alone, and not rights. It must rather have owed its origin either to the wisdom of one of the Roman kings, or to the urgency of the burgesses that they should be delivered from exclusive liability to burdens, and that the non-burgesses should be made to share