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Civitas

p291 The Roman section only (pp291‑293) of an article on pp288‑293 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

CI′VITAS, (πολιτεία), citizenship.

[. . .]

2. Roman. Civitas means the whole body of cives, or members, of any given state. Civitates are defined by Cicero (Somn. Scip. c3) to be "concilium coetusque hominum jure sociati." A civitas is, therefore, properly a political community, sovereign and independent. The word civitas is frequently used by the Roman writers to express the condition of a Roman citizen, as distinguished from that of other persons not Roman citizens, as in the phrases dare civitatem, donare civitate, usurpare civitatem.

If we attempt to distinguish the members of any given civitas from all other people in the world, we can only do it by enumerating all the rights and duties of a member of this civitas, which are not rights and duties of a person who is not a member of this civitas. If any rights and duties which belong to a member of this civitas, and do not belong to any person not a member of this civitas, are omitted in the enumeration, it is an incomplete enumeration; for the rights and duties not expressly included must be assumed as common to the members of this civitas and to all the world, or, to use a Roman expression, they exist jure gentium. Having enumerated all the characteristics of the members of any given civitas, we have then to show how a man acquires them, and how he loses them, and the notion of a member of such civitas is then complete.

Some members of a political community (cives) may have more political rights than others; a principle by the aid of which Savigny (Geschichte des Röm. Rechts im Mittelalter, c. ii p22) has expressed briefly and clearly the distinction between the two great classes of Roman citizens under the republic:— "In the free republic there were two classes of Roman citizens, one that had, and another that had not, a share in the sovereign power (optimo jure, non optimo jure cives). That which particularly distinguished the higher class was the right to vote in a tribe, and the capacity for enjoying magistracies (suffragium et honores)." According to this view, the jus civitatis comprehended part of that which the Romans called jus publicum, and also, and most particularly, that which they called jus privatum. The jus privatum comprehended the jus connubii and jus commercii, and those who had not these had no citizenship. Those who had the jus suffragiorum and jus honorum had the complete citizenship, or, in other words, they were optimo jure cives. Those who had the privatum, but the publicum jus, were citizens, though citizens of an inferior class. The jus privatum seems to be equivalent to the jus Quiritium, and the civitas Romana to the jus publicum. Accordingly, we sometimes find the jus Quiritium contrasted with the Romana civitas (Plin. Ep. X.4.22; Ulp. Frag. tit. 3 §2). Livy (XXXVIII.36) says that until B.C. 188, the Formiani, Fundani, and Arpinates, had the civitas without the suffragium; and, at an earlier time, the people of Anagnia received the "Civitas sine suffragii latione" (Liv. IX.43).

Ulpian (Frag. tit. 5 §4; 19 §4; 20 §8; 11 §6) has stated a distinction, as existing in his time among the free persons who were within the political limits of the Roman state, which it is of great importance to apprehend clearly. There were three classes of free persons, Cives, Latini, and Peregrini. Gaius (I.12) points to the same division, where he says that a slave, when made free, might become a Civis Romanus, or a Latinus, or might be in the number of the peregrini dediticii, according to circumstances. Civis, according to Ulpian, is he who possesses the complete rights of a Roman citizen. The Peregrinus had not commercium and connubium, which were the characteristic rights of a Roman citizen, not viewed in his political capacity; but the Peregrinus had a capacity for making all kinds of contracts which were allowable by the jus gentium. The Latinus was an intermediate state; he had not the connubium, and consequently he had not the patria potestas nor rights of agnatio; but he had the commercium or the right of acquiring quiritarian ownership, as vindicatio, in jure cessio, mancipatio, and testamenti factio, which last comprises the power of making a will in Roman p292form, of becoming heres or legatee under a will, and of being a witness to a will; also he could contract many obligationes which a Peregrinus could not. These were the general capacities of a Latinus and peregrinus; but a Latinus or a peregrinus might obtain by special favour certain rights which he had not by virtue of his condition only. The legitima hereditas was not included in the testamenti factio; for the legitima hereditas presupposed agnatio, and agnatio presupposed connubium, or the capacity to contract a Roman marriage.

According to Savigny, the notion of civis and civitas had its origin in the union of the patricii and the plebes as one estate. The peregrinitas, in the sense above stated, originated in the conquest of a state by the Romans, when the conquered state did not obtain the civitas; and he conjectures that the notion of peregrinitas was applied originally to all citizens of foreign states who had a foedus with Rome.

The civitas then, historically viewed, was in brief as follows:— Originally, the Romans divided all persons into Cives and Peregrini: the cives, considered as non-political persons and simply as individuals, had connubium and commercium; the peregrini had neither. But this merely negative description of a peregrinus would apply also to slaves, and to the members of states with which Rome never had any connection, and consequently it is requisite to give to the notion of peregrinus something of a positive character in order to determine what it is. A peregrinus then was one who had no legal capacity according to the jus Romanorum, but had a capacity of acquiring rights according to the jus gentium, which rights the Roman courts of justice acknowledged. The following persons then would be included under Peregrini:

  1. Before the time of Antoninus Caracalla, the inhabitants of almost all the Roman provinces.

  2. The citizens of foreign states which were in friendly relation with Rome.

  3. Romans who had lost the civitas in consequence of some legal penalty, as deportatio (Dig.48 tit. 19 s17 § 1).

  4. Libertini, who were dediticiorum numero (Ulpian, Frag. tit. 20 §14).

The later division of persons was this — Cives, Latini, and Peregrini. The condition of cives and peregrini was unchanged; but a third class, that of Latini, was formed, who had a limited civitas, which consisted in having commercium without connubium. By possessing commercium they approached to the class of cives; by not having connubium they approached the class of peregrini. Yet persons who belonged to the class of Latini or Peregrini might, by grant, receive a higher legal capacity than that which belonged to persons of this class (Ulpian, Frag. tit. 5 §4, 19 §4).

Thus then there were at one time in the Roman state only two classes of persons with different legal capacities — Cives and Peregrini. At another and a later time there were three classes — Cives, Latini, and Peregrini. It remains the explain when the third class, Latini, was established, and what persons were included in the term Peregrini at the two several times.

Before the Social war B.C. 90, the Romans had acquired the dominion of all Italy, and the state then comprehended the following persons:—

  1. Cives Romani, that is, the inhabitants of Rome, the citizens of the coloniae civium, and the citizens of the municipia without respect to their origin.

  2. Latini, that is, the citizens of the old Latin towns, except those which were raised to the rank of municipia; the term Latini also included the numerous Coloniae Latinae.

  3. Socii, that is, the free inhabitants of Italy, who were not included in 1 or 2.

  4. Provinciales, or the free subjects of Rome beyond the limits of Italy. But these four descriptions of persons were all comprehended under Cives and Peregrini; for the term peregrini comprehended numbers 2, 3, and 4.

After the Social war, and in B.C. 90, by a lex Julia the Roman citizenship was extended to all Italy, properly so called, and even to Gallia Cispadana. The consequence of this change was that the Socii and Latini were merged in the class of cives Romani, and there remained only cives and provinciales, but the provinciales were still peregrini. It was at this time apparently that the class of Latini was established, which did not, as formerly, denote a people, but an artificial class of persons with a particular legal capacity. This legal capacity or half citizenship, as already explained, consisted in the possession of the Commercium without the Connubium. One object of forming this new class was apparently to prepare a gradual transition to the full civitas for such peregrini as the state might wish to favour. The condition of the class of Latini was expressed by the term Latinitas or Jus Latii. [Latinitas.]

From this time there existed the three classes, described by Gaius and Ulpian — Cives, Latini, and Peregrini: cives with commercium and connubium, Latini with commercium only, and peregrini without either. Only the cives had the political rights, the suffragium and honores. The names of the three classes existed to the time of Justinian's legislation.

The rights of a Roman citizen were acquired in several ways, but most commonly by a person being born of parents who were Roman citizens. A Roman pater familias, filius familias, mater familias and filia familias were all cives, though the first only was sui juris and the rest were not. If a Roman citizen married a Latina or a peregrina, believing her to be a Roman citizen, and begot a child, this child was not in the power of his father, because he was not a Roman citizen, but the child was either a Latinus or a peregrinus according to the condition of his mother; and no child followed the condition of his father without there wasº connubium between his father and mother. By a senatus-consultum, the parents were allowed to prove their mistake (causam erroris probare); and, on this being done, both the mother and the child became Roman citizens, and, as a consequence, the son was in the power of the father (Gaius, I.67). Other cases relating to the matter called causae probatio are stated by Gaius (I.29, &c.; I.66, &c.), from which it appears that the facilities for obtaining the Roman civitas were gradually extended (see also Ulp. Frag. tit. 3, De Latinis.).

A slave might obtain the civitas by manumission (vindicta), by the census, and by a testamentum, if there was no legal impediment; but it depended on circumstances, as already stated, whether he became a Civis Romanus, a Latinus, or in the number of the peregrini dediticii. [Manumissio.]

Under the republic and before the Social war, the civitas could, of course, be conferred by a lex, and p293upon such terms as the lex declared (Liv. VI.4; and in the case of Ferentinates, Liv. XXXIV.42; Cicero, pro Balbo, 13). The Julia lexB.C. 90, was a comprehensive measure. Cicero, however (pro Balbo, c8), remarks that many of the people of Heracleia and Neapolis made some opposition to accepting the terms offered by the lex, and would have preferred their former relation to Rome as civitates foederatae (foederis sui libertatem) to the Roman civitas. The lex gave the Roman civitas not only to the natives of the Italian towns, but also to natives of towns out of Italy, who had become citizens of Italian towns before the lex was enacted. Thus L. Manlius (Cic. ad Fam. XIII.30), a native of Catina, in Sicily, obtained the Roman civitas by virtue of having been enrolled as a citizen of Neapolis (erat enim in id municipium adscriptus) by the passing of the lex. The lex Plautia Papiria, which was proposed by the tribunes M. Plautius Silvanus and C. Papirius Carbo, B.C. 89, contained a provision that persons, who had been enrolled as citizens of the foederatae civitates, and who had a domicile in Italy at the time when the law was passed, should have the Roman civitas, if they gave in their names to the praetor within sixty days (apud praetorem essent professi, Cic. pro Archia, c4). Archias claimed the benefit of this lex as having been enrolled a citizen of Heraclea, and having in the other respects complied with the lex. The case of L. Manlius appears to show that the lex Julia applied to persons not natives of an Italian town it they had become citizens of such town before the passing of the lex; and it is not clear what was the precise object of the lex Plautia Papiria, whether merely to explain or to limit the operation of the Julia lex. If the Julia lex merely declared that those who were adscripti in the Italian towns before the passing of the lex should acquire the Roman civitas, it would be necessary to provide some security against fraudulent registrations which might be made after the passing of the lex, and this would be effected by requiring adscripti to give in their names at Rome within the sixty days.

With the establishment of the imperial power, the political rights of Roman citizens became insignificant, and the commercium and the connubium were the only parts of the civitas that were valuable. The constitution of Antoninus Caracalla, which gave the civitas to all the Roman world, applied only to communities and not to individuals; its effect was to make all the cities in the empire municipia, and all Latini into cives. The distinction of cives and Latini, from this time forward, only applied to individuals, namely, to freedmen and their children. The peregrinitas in like manner ceased to be applicable to communities, and only existed in the dediticii as a class of individuals. The legislation of Justinian finally put an end to what remained of this ancient division into classes, and the only division of persons was into subjects of the Caesar and slaves.

The word civitas is often used by the Roman writers to express any political community, as Civitas Antiochiensium, &c.

(Savigny, Zeitschrift, &c. vol. V, Ueber die Entstehung, &c., der Latinität; vol. IX, Der Römische Volksschluss der Tafel von Heraklea; vol. XI, Nachträge zu früheren Arbeiten; and Savigny, System des heutigen Römischen Rechts, vol. II p23, &c.

[G.L.]


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