A. Apollónius Cordus P. Rutilió Barduló omnibusque
sal.
> > And see Zulueta's commentary on that passage in
> the
> > Oxford edition:
> > "The right of the gens to succeed in default of
> sui
> > heredes must be older than the Twelve Tables,
> which so
> > far from creating the right seem to have reduced
> it by
> > giving preference to the nearest agnate. But the
> whole
> > subject of the gens and the nature of its
> succession
> > is conjectural. Gaius dismisses it as obsolete,
> and
> > the praetor simply ignored it... In early Rome it
> [the
> > gens] was of very considerable social and even
> > political importance, but by the time of the
> Twelve
> > Tables it was already in decay. Its right of
> > succession may have been in the nature of an
> escheat,
> > by which land, the main form of wealth, went back
> to
> > the body from which it had come. One should not
> infer
> > from the fact that the Twelve Tables said
> gentiles,
> > not gens, that the gentiles succeeded individually
> and
> > not as a corporation, but there is some evidence
> that
> > this was so in later times. Traces of gentilitial
> > succession and tutela are found up to the
> beginning of
> > the Empire, but not later."
>
> [Bardulus] It seems to me that Zulueta is confirming
> what Gaius
> said. I can't see your reasons here, unless you are
> saying that
> you don't believe in your own sources.
Certainly he confirms what Gaius said, but he
contradicts your interpretation of Gaius. You seemed
to be arguing that this passage of Gaius was evidence
that gentés were important and cohesive during the
main republican period. Zulueta, on the contrary,
points out that the gentés, at least with respect to
the law of succession, were "already in decay" by c.
450 B.C., in the very early republican period.
> > You have imported the word "civil" into your
> > translation of "gentÃlicium jús", but I don't know
> > where you've got it from.
>
> [Bardulus] You know, there are several kinds of
> laws: penal
> laws, political laws, administrative laws,
> mercantile laws,
> *civil* laws and so. Since Gaius talks about
> heritage (and
> Zulueta talks also of tutela), this is *civil* law.
Ah, I see what you mean. I thought you were using
"civil" in its technical sense in Roman law - as you
probably know, jús cÃvile was the body of Roman law
based on the lex duodecim tabulárum and other legés,
as contrasted with the jús honorárium, for instance.
In this sense, Gaius is not talking about jús cÃvile,
or at least only partly.
> > "GentÃlicium jús" doesn't
> > mean that there was a huge body of law dealing
> with
> > many aspects of the life of the gens - it simply
> means
> > that there were some legal rules (however many or
> few
> > of them there were originally) relating to gentés.
>
> [Bardulus] Yes, and I didn't say any other thing.
Then I am not sure what you are trying to argue. Your
point was originally that gentés were important and
cohesive in republican society. You cited Gaius. I
assumed that you were interpreting Gaius in some way
which would support your argument.
> > Since Gaius' only reference to the gentÃlicium jús
> is
> > in this context, and since indeed this is pretty
> well
> > the only reference to such a thing in any source
> that
> > I know of, it would be perfectly reasonable to
> assume
> > that the gentÃlicium jús consisted entirely of
> this
> > rule of inheritance. Certainly to suggest that it
> > contained a significant number of other rules,
> > mysteriously lost, would be totally without
> reason.
>
> [Bardulus] I don't suggest anything, Corde. Gaius
> says "all the
> ius gentilicium", and not "this ius gentilicium".
> So, it seems
> that there were some more rules in ancient times. In
> fact, see,
> Zulueta adds the tutela issue, which I didn't know.
> :-)
Indeed, but it also suggests that there were not very
many other rules, because otherwise it would be most
surprising if the whole thing had fallen into disuse.
Either way, the crucial point is that it did fall into
disuse, and that it did so quite early in republican
history.
> > But even if we imagine a large complex of legal
> rules
> > pertaining to gentés, we are faced with Gaius'
> > statement "tótum gentÃlicium jús in désuétúdinem
> > abisse" - "that the whole gentÃlicium jús has
> fallen
> > into disuse"; and, as Zulueta says, it had
> probably
> > been in a state of decay already by the time of
> the
> > lex duodecim tabulárum, traditionally dated to c.
> 450
> > B.C.
>
> [Bardulus] And? What was what I said in my last
> post?
You seemed to imply that it had been important during
the republican period. If you were not trying to imply
that, then I cannot fathom what you are actually
trying to say, unless you're trying to agree with me
that gentés were not really very important during the
republic.
> > Your evidence for this? Your statement is flatly
> > contradicted by A. N. Sherwin-White, "The Roman
> > Citizenship" (Oxford University Press, 1973):
> > "A third important part of early Republican Latium
> [he
> > means Latin status, not the geographical territory
> of
> > Latium] was the peculiar right of migratio to
> Rome. We
> > have seen that this corresponds to a very early
> > institution of the tribal period of Latin history.
> How
> > far this sank out of sight in the great days of
> the
> > independent city-states is hard to tell. While the
> > possible partial limitation of its exercise in 268
> > B.C. suggests that it remained lively, and the
> > practice of exilium must have served to preserve
> it,
> > there is no doubt that the increased value of the
> > Roman citizenship after the second Punic War
> > encouraged a sudden revival of the old custom,
> > somewhat to the detriment of the Latins
> themselves.
> > Large numbers of Latins removed to Rome and began
> by
> > registering themselves at the census acquired
> Roman
> > citizenship. Such an institution, however much
> Roman
> > and Latin authorities sought to check its use,
> would
> > at least keep alive the Roman traditions of the
> > Latins, and encourage that sense of a specially
> > privileged status second only to Roman
> citizenship.
> > This right of gaining the franchise per
> migrationem et
> > censum disappeared by the time of the Social War,
> very
> > probably in the interess of the Latins
> themselves."
> > (pp.110-11)
> > Far from being "replaced" after 384 B.C., the jús
> > migrandà continued until the time of the Social
> War,
> > in the late 90s B.C. - that is, until the last or
> > second-last generation of the republic.
>
> [Bardulus] This needs a further explanation. The ius
> migrandi
> didn't disappear *formally* until a senatusconsultum
> dated in
> the year 177 before the common era (see Livy XXXIV,
> 42), not the
> late 90s as you say.
I don't say it - Sherwin-White says it. If you
disagree with him, you had better read his book and
produce evidence to contradict him. But with the
greatest respect to you, if I have to choose between
your opinion and the opinion of the scholar who wrote
the standard work on this subject, I shall tend to
believe the latter. On the specific episode of 195
(this is the year to which the passage of Livy you
cite refers, not 177), however, I can say something.
Livy doesn't by any stretch of imagination say that
the senate abolished the right of migration. The
senate could not do any such thing, since the relevant
treaty must have been a lex, and the senate could not
overrule a lex. What Livy says is that the senate
ruled on the particular case of the men of Puteoli,
Salernum, and Buxentum. Livy doesn't say why the
senate decided that these men in particular were
denied citizenship. It's notable that he *doesn't* say
that these people had actually come to live at Rome -
he seems to imply that they were still living in the
colonies. If that's the case, then obviously the jús
migrandà is completely irrelevant, because no migrátió
had take place.
It's also important to note that a person who migrated
to Rome hoping to gain citizenship was only secure in
his citizenship once he had been enrolled at the
census. Before then, his status was more precarious,
and he could probably during that time have been ruled
to be still a non-citizen.
There was a similar episode in 177, which I'll discuss
below.
> But it become unused before. At 204 of common era,
> censores C.
> Claudius Nero and M. Livius expelled from the census
> to all the
> latins who had obtained their citizenship through
> migrationem et
> censum (this is, ius migrandi). Livy says that
> 12.000 latins
> lost their roman citizenship (see Liv. XXXIX, 3).
This is rather different, of course, because these
people *had* been registered at the census. There is
some suggestion, however, that the census in question
had been conducted improperly, because in the
subsequent investigation the senate ordered the
praetor to disregard the last census and to use as
authoritative the two censús before that, of 204 and
194. The census-figures suggest that there was some
justification in this idea that the census of 189 had
been conducted improperly: the census of 189
registered about 258,000 citizens, in contrast to the
144,000 registered in 194. This huge rise could well
have been caused by the registration of large numbers
of Latins, and it is not possible to say that those
Latins were all genuinely entitled to citizenship. In
c. 265 B.C. the jús migrandà had been restricted to
Latins who left at least one son behind in their
home-town. It may well be that the censórés of 189 had
ignored this rule and registered all Latins. At any
rate the Latins who were expelled in 189 had evidently
gained their citizenship illegally, for they were
expelled by a special quaestió under the presidency of
a praetor - a judicial investigation, in other words,
of a kind which was invariably used to investigate
cases of illegality. And note that Livy does *not* say
that they were deprived of their citizenship - he says
"duodecim mÃlia LatÃnórum domós rediérunt", "twelve
thousand Latins returned to their homes". They were
*Latins*, not Roman citizens, when they returned home.
The idea that the census of 189 was improperly
conducted is further corroborated by the fact that a
further investigation was needed in 177, in which
again it was ordered (this time by a lex) that Latins
who had been registered in the census of 189 were not
to be considered Roman citizens and were to return
home.
> And the same
> happened again at 195 before the common era. In
> fact, one of the
> causes of the Social War was the dificulty to obtain
> the Roman
> citizenship by the allies.
This episode is the same one we discussed above, which
you misdated to 177.
It is probably true that Latins were not always
allowed to become Roman citizens when they were indeed
legally entitled; but that is merely a matter of Roman
magistrates failing to abide by the law. The law
remained the same, for it could only have been changed
by a lex, and there is no evidence for any such lex in
the period you're discussing, unless the lex Claudia
of 177 was that lex (but there is nothing in the
sources to suggest that it was - it is clearly
depicted as a measure designed to deal specifically
with the problem of the census of 189, not any more
general rules). The first plausible candidate for such
a lex is the lex Licinia Mucia of 95; the first date
at which we can say for certain that the jús migrandÃ
no longer existed is 89.
> [Bardulus] And are you saying that this is
> historical? What is a
> treaty? You said before: "mutual arrangements". And
> indeed Rome
> only conceded rights to other cities or nations with
> which there
> were mutual relationship. Unilaterally granting or
> denying were
> only for the dediticii, this is, the defeated
> enemies.
Not so. The praetór peregrÃnus unilaterally created
many legal rights for non-citizens throughout the
second and first centuries B.C. But this is not the
point. What I am saying is that we are fully within
the bounds of Roman law. It is true that citizenship
was not unilaterally granted to other communities, but
it could have been. The reason it was not done is not
because it was not possible in Roman law, but because
the Romans had no great interest in doing it. Well, we
have an interest in doing it, and so we have done it.
There's no need for any fiction or fantasy such as you
are trying to impute. A legal fiction occurs when it
is decided to deal with a certain situation as if it
were a different one. We are not treating any
situation as if it were a different one; we are
treating it as it really is, and dealing with it in a
Roman way.
> > This was not originally a part of the package of
> Latin
> > rights. Let's hear from Sherwin-White again:
> > "The number of iura that are late accretions [to
> the
> > Latin rights] can be thus reduced to a modest
> figure.
> > Most obvious is the ius suffragi ferendi: one
> tribe
> > was set aside at Rome in the concilium plebis in
> which
> > Latins could cast their votes. Dionysius has taken
> > this custom to be primitive, but elsewhere it has
> left
> > no trace until Livy's mention of it during the
> second
> > Punic War. As a primitive institution, beside the
> ius
> > mutandae civitatis it seems superfluous; but
> later,
> > when Roman citizens were being drafted off in
> large
> > numbers to Latin colonies, in distant parts of
> Italy,
> > the custom, suggesting vaguely the yet unformed
> > concept of dual citizenship, becomes highly
> > interesting."(p. 35)
> > So the answer is "no", as far as I'm concerned.
>
> [Bardulus] It seems that Sherwin-White says that the
> latini
> veteres *had* the ius sufragii, and mentions
> Dionysius (of
> Halicarnassus) and Livy (see XXXV, 3).
No, he says that Dionysius is probably wrong, and that
this right was most likely created during the second
Punic War. So it's not part of the original package.
> ... And I never
> said that
> this right were in the "original package", so the
> answer is
> "yes", as far as I'm concerned. :-)
Well, if I say to you that the sky is blue you are, of
course, free to imagine that I've said that the sky is
green, but that doesn't change what I actually said.
The answer is "no".
> > Yes, I did read your last message, and within it I
> > read your statement that only magistrates with
> > imperium could grant citizenship. That statement
> was
> > incorrect, and that is why I contradicted it.
> > Magistrates, with or without imperium, could not
> grant
> > citizenship on their own authority.
>
> [Bardulus] This begins to be ridiculous. Where I
> said "on their
> own authority"? Read again my post (yes, for third
> time), and
> tell me: what I said? I said: "Only the people (at
> the Comitia),
> the Senate authorized by the people, and magistrates
> with
> imperium (like Caesar do [sorry] while had imperium
> proconsulare
> in the Gaul), thru [sorry] a lex data." Yes, read
> again:
> "through a lex data". Ok? Ok, let's continue.
I understand now what you were *trying* to say, but
the words you wrote mean something rather different.
Still, if what you were trying to say was that
citizenship could only be granted directly or
indirectly by lex, then we agree.
> > The first grants
> > of citizenship by a magistrate without the prior
> > authorization of a lex was by Marius in 101 B.C.
> But
> > his action was clearly illegal, and he never
> denied
> > it, merely remarking that "in the din of battle he
> > could not hear the voice of the law" (Plutarch,
> > "Marius" 28).
> > The lex Júlia which you mention was, of course,
> late
> > republican, but it was also less than you claim.
> It
> > did not give magistrates with imperium a general
> right
> > to grant citizenship to all and sundry for ever
> after:
> > it gave them the right to give citizenship to
> Italians
> > who laid down their arms during the Social War.
> Since
> > the Social War is no longer being fought, this law
> is
> > now obsolete.
>
> [Bardulus] You're wrong, the Lex Iulia didn't apply
> only to
> italians. See the inscription of the Bronze of
> Ascoli (CIL I,
> 709): all they were *iberians* (the "turma
> Sallvitana").
I beg your pardon, I ought to have said "people
fighting on the side of the Italians", as these
clearly were. In any case, the point is that the
statute was specific to the circumstances of the
Social War.
> > Compare, however, the lex Gellia Cornélia of 72,
> which
> > authorized in advance the grant of citizenship by
> > Pompéjus after the Sertorian war (I expect you
> know
> > all this well, since it's local history for you).
> This
> > shows quite clearly that even as late as 72 a
> > magistrate had to be given authority by lex in
> advance
> > before he could grant citizenship. Chapter III of
> > Goodfellow's "Roman Citizenship" (Lancaster Press,
> > 1935) gives a good overview of this subject.
>
> [Bardulus] Yes, and Pompeius had imperium
> proconsulare during
> the war against Sertorius (see Mommsen, book V,
> chapter I, page
> 33 of the Spanish version, sorry). It seems that all
> the
> magistrates authorized by a law to grant the
> citizenship had
> imperium, so I'm right. But if you know any example
> of the
> contrary, please, post it.
Yes, they all had imperium, but again you have missed
the point. There is no reason to say that the populus
*could not* grant such powers to magistrates without
imperium, it just happens that, as far as we know, the
populus did not do so.
> > Ah, but as I've shown above it is not based on any
> > fiction at all! We do not see foreigners as
> freedmen;
> > nor do we have to have a treaty with any other
> > country. All we have to do is say that foreigners
> all
> > have the jús migrandÃ. That is what the
> constitution
> > says, though not in those very words.
>
> [Bardulus] And this is the fiction: you view the
> whole world as
> if it had diplomatic relations with Nova Roma, or as
> if it were
> a defeated enemy. Thank the Gods, that's not true.
No, please pay attention to what I am saying. There
was nothing which prevented foreigners being given the
jús migrandà unilaterally. We've done so. We haven't
done so by pretending that we have treaties with
anyone, or that we've defeated anyone. We've just said
"anyone can apply for citizenship". What's your
objection to that?
> > I think you've misread something somewhere.
> > FÃliÃfamiliás cannot emancipate themselves either.
> > It's true that some people talked recently about
> > "emancipating oneself", but that was sloppiness.
> The
> > lex Labiena dé gentibus granted all citizens the
> > extraordinary right to change their gens and domus
> (or
> > stirps) within the year following its approval.
> That
> > was certainly unhistorical, but it was an
> > extraordinary measure designed to ease the
> transition
> > from the old system to the new system. Now that
> > year-long amnesty is over, and the new system is
> fully
> > in place. Now people cannot emancipate themselves,
> nor
> > can the censórés emancipate them. Only their
> > patrésfamiliás or mátrésfamiliás can emancipate
> their
> > fÃlià (although there is a provision for
> emancipation
> > by the praetórés in unusual cases - this is a
> minor
> > departure from historical practice, but it is by
> > analogy with a historical procedure relating to
> > marriage-law).
>
> [Bardulus] And I think you are the one who has
> misread (again)
> something somewhere. What was what I said? I said:
> "Oh, I had
> forgotten that the censores aren't who emancipate!
> They were the
> filiifamiliarum who emancipate theirselves (sorry)."
> And you are
> saying that the filiifamiliarum emancipated
> themselves during
> this "amnesty". So I am right.
Again, I think I now understand what you *meant* to
say, but what you said is a different matter. You used
the present tense, thus implying that fÃliÃfamiliás
are currently able to emancipate themselves. This is
not true. If your use of the present tense was
unintentional, then you made a mistake. That's quite
all right, but it doesn't mean you were right.
> > May I suggest that you read the lex you are
> > criticising?
>
> [Bardulus] I'm not criticising the lex, but the
> arguments by
> which this lex was proposed and now defended. It was
> said that
> this lex was historical, and it isn't. And, Corde,
> that
> commentary was out of place. :-)
Out of place? I don't understand what you mean. It
seemed quite relevant to me.
It was, and is, said that this lex is historical, and
that is because it is. It contains a few departures
from historical practice, that is true. But it is
almost infinitely more historical than the old system
or, indeed, any system we could conceive. If you want
to use the word "historical" to mean "exactly as
things were done in ancient times in every respect",
then obviously nothing will ever be historical - we
cannot walk through the same river twice. But I don't
think that's a very useful way to use the word
"historical".
> > Well, this is true, of course, but if you wish to
> > raise this objection then you must surely concede
> that
> > nothing at all in Nova Róma is historical. The
> > sovereignty of Nova Róma is a legal fiction, but
> it is
> > the one on which the entire organization is based.
> If
> > we do not assume it, then we may as well dismantle
> the
> > whole thing.
>
> [Bardulus] Not at all. Nova Roma is an international
> association
> dedicated to promote the Roman culture, religion,
> values...
> There's no need of "sovereignty". Thank the Gods,
> some provinces
> are making steps to act in the real world, not in a
> world of
> micronations (fictions).
It's interesting that you use the word "province"
without putting it in quotation-marks. Are they realy
provinces? Of course not. So why are you happy to use
that word, when you cannot accept words like
"sovereignty" or "nation"?
> > And presumably you would also like us to stop
> talking
> > about Nova Róma as a state, and therefore stop
> talking
> > about a state religion? Shall we stop having
> consulés
> > and tribúnà plébis?
>
> [Bardulus] Nova Roma isn't a State, Corde, I'm
> sorry. This is an
> association with home in the State of New Hampshire,
> USA, and
> our Consules are the co-presidents, the Praetores
> are the
> co-vice-presidents, the Quaestores are the
> treasurers, the
> Senate is the Board of Directors, and so. See the
> Articles of
> Incorporation of Nova Roma Inc. and the
> Constitution. Both are
> published in the Tabularium.
Yes, but it is an association which regards itself as
a state. That's one of the basic, non-negotiable facts
about Nova Róma. As for consulés &c., you haven't
answered the question. We can have presidents without
calling them consulés - is that what you'd like? And
the tribúnà plébis aren't mentioned in the articles of
incorporation at all - shall we abolish them?
> > Shall we stop having pontificés
> > and fláminés?
>
> [Bardulus] The Religio Romana can have the religious
> institutions that their practicioners and priests
> want, like any
> other religion in the world, and only concerns to
> the
> practicioners and priests. That's not of our
> business.
It claims to be the state religion, and the collégium
pontificum has the power to take actions which affect
non-practitioners. Should we go and tell the
pontificés that they can't have these powers?
> > Either you accept the legal fiction of
> > Nova Róma's sovereignty or you reject it. If you
> > accept it, then you cannot use it as a means to
> > criticise the historicity of any particular lex.
>
> [Bardulus] As I said above, I have no problem with a
> lex that
> it's ahistorical. But I have a problem when somebody
> wants to
> justify the change of a system for another saying
> that the new
> is historical, and it isn't, you know?
Yes, I know, but the fact is that the new system is
historical in any reasonable definition of the word.
> > If
> > you reject it, then I really don't understand what
> you
> > are doing here in the first place.
>
> [Bardulus] I don't remember having asked you what
> are you doing
> here (and certainly it doesn't matter to me). So
> don't be
> impertinent, ok? :-)
It is extremely pertinent. If you're saying that you
reject the basic assumption of Nova Róma's
sovereignty, then clearly you are rejecting not only
the new system of family law but in fact the
organization itself. If you are rejecting the
organization, then I don't understand why you are a
member of it. If all you want is an organization which
promotes Roman culture, then it's no wonder that you
have a problem with the new family-law system!
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