Roman Concepts of Equality

Author(s): Max Radin

Reviewed work(s):
Source: Political Science Quarterly, Vol. 38, No. 2 (Jun., 1923), pp. 262-289
Published by: The Academy of Political Science
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ROMAN CONCEPTS OF EQUALITY

E holdthesetruthsto be self-evident,
thatall men
are createdequal". These words,I doubt not,
have been familiarenougheversincetheywere
or Silas Deane or Rousseau or
writtenby Thomas Jefferson
or whoeveritwasthatwrotethe
Locke or Aquinasor Aristotle,
Declarationof Independence. Are theytrue? Or,beingtrue,
are theyself-evident?We have builta polityupon the conof our beliefin equality. It has been wicked
tinuediteration
in vain", said
to questionit. " He has studiedourconstitution
Mr. JusticeBlack of Oklahoma," who has notdiscoveredthat
is equality,equalityof
the keystoneof that great instrument
equalityof burdenand equalmen,equalityof representation,
And in the Bill of Rightswhichis an inte".'
ityof benefits
thereistheunqualified
American
constitutions
of
gralpart many
Ws
s

VI'

statement, "sAll men are by nature free and equal '. "All
men)", we notice, and " by nature". Nothing could be more

and morefinal.
definite
Fathers nor
Now it is plain that neitherthe half-mythical
theirsuccessors,howeverobtuse to the discrepanciesbetween
theoryand practice,could ever have supposed that equality
meantidentity. Men are talland short,blond and dark,wise
and foolish,by a determination
thatgoes behindeven Bills of
Equalitarianof RevRights. And I fancythemostdetermined
Franceneverquitesupposedthata societyof indisolutionary
tinguishableunitswas eitherconceivableor desirable. And
sincemenare notequal in the senseof being interchangeable,
equalityhas oftenbeen statedto be equalitybeforethe law;
thatis to say,we have assertedthat in his public and private
everymanhas the same,and exactlythe same,
legal functions,
rangeof capacities.
Yet eventhatcould have been felt onlyas an ideal. The
the Bill of Rights,werewritten
Declarationof Independence,
I

Bardrickv. Dillon,7 Okla. 535; 54 Pac. 785.

262

ROMAN CONCEPTS OF EQUALITY

263

- even a favored
when slaverywas a tolerated
-institution.
They weresubscribedto by men who enforcedpropertyand
religiousqualifications
forthe suffrage
and to whomtheNineteenthAmendment
wouldhave seemednothingless than preposterous. Nor can candid observersof the presentday delude themselves
into believingthat equality" beforethe law"
reallymeansthatall menstandon an equal footingin theactual
administration
of justice. To take only one distinction,
that
between rich and poor, the possession of wealth certainly
makesa difference
in thewayin whichlegal machinery
operates. A richdefendant,
it has been said,looks upon a juryof
hisdebtors; a poordefendant
confronts
a juryof his creditors.
One man can commandthe servicesof Mr. Elihu Root and
anothermustbe satisfied
witha meretyro. Do theystandon
equal termsbeforean appellatecourt. It is, to say the least,
doubtful.
But,ifwe have not reallymademen equal beforethe law,
we have notceased to wishto do so, and what is stilla distant
and perhapsunattainable
goal maynonethe less give a definitedirectionto our politicaland legal statesmanship.
Now,theRomanstatewas notfoundedon a Bill of Rights.
The leges regiae,theTwelveTables,the proclamation
made by
Evanderto the Aboriginesof Roma Quadrata,have no assertion that menare by natureequal. Indeed the ancientcity
statebeganwiththeassumptionof a great gulf betweenthe
civisand the non-civis. To borrowa Germanphrase,theone
wasfrei,and the other,vogel-frei. To killtheone was almost
parricide.z To kill the otherwas no crimeat all.2 But within
1 The derivationof parricidiumfrompatricidium,the murderof a father,is
extremelydubious. Apparentlymurder,as far as it was a punishable crime at
all, was always parricidium in Ancient Rome. Of all the derivations suggested,the most attractivemakes it the murderof a kinsman,that is, a member
of the religiouslyprotectedgroup whetherthat is the blood familyor the clan
characterized by common sacra. Cf. Strachan-Davidson, Problems of the
Roman CriminalLaw, vol. I, p. 22.
2 A strangerwho entereda city withoutpublic or private protectioncould be
killed with impunitybecause therewas no procedureto bring him justice. To
kill a protectedstranger,kospes,was an injury to the protectoralone. It was,
however,a mark of barbaritythat even a casual strangershould be refused
eitherpublic protectionor the protectionof at least one citizen patron.

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the state,whatevermight have been the undeniable discrepancies of prowess and strengthand fortune between citizen and
citizen,therewas doubtless a rude recognition of equality as
well. If booty was to be distributedor land allotted,it is likely
that in the organized city state the divisionwas not made as in
Homeric society,to the warriorsin proportionto theirbravery
and strength,but equally, viritirn, each who had played a
man's part receivinga man's share., Throughoutlater Roman
history, this real or assumed equality of the ancient cives
among themselveswas theoreticallyinsistedupon. Even those
who flagrantlyviolated it in practice felt compelled to acknowledge its validity,and it served as a constant justification
for revolutionaryactivity.
Equality of the full cives, the pares, the o oo was perfectly
consistentwitha state composed of a numberof groups radically unequal. The Roman state,in the earliestpicturewe can
frame of it, contained not only free and equal citizens, but
women, children,freedmen,aliens, allies and slaves.2 It had
furtherthe peculiaritywhich most other ancient polities did
not have, in that the group of really full citizenswas restricted
by an indefiniteextension of the legal nonage of children.3
1 Praeda and manubiae, the actual booty and the money realized by its sale,
were strictlythe propertyof the state. When a certain part was given to
the soldiers, there is no hint of any division except an equal one. To take
bootyexcept by allotmentwas theftby the Lex Julia (Modestinus, D. 48, I3,
I5).
Cf. especially Petronius Sat. LXXIX, sub fin; Girard, Manuel, p. 283;
Mommsen,Rom. Forsch. 2, pp. 443 et seq.; Karlowa, Rom. Rechtsgeschichte,
II, p. 5.
2 Very early in Roman
historywe meet the ingeniousdevice of differentiating
between several classes of allies and residentnon-citizens. States that made 3
treatyand received rights of participationin the Roman communityacquired
themon differentterms. In 35I B. C. the Caerites were given citizenshipsine
suffragio(Livy VII, 20; VIII, p. I4), and the precedentwas followed. That
created for Rome a class of half-citizens,or rather several such classes, for
the extentto which civic privileges were abridged, varied with the communities absorbed. All these Caerites were carried on a list separate fromthe rest
of the citizens. However, before 35I it appears that a man was eithera civis
or he was not. There was no middle course.
3 Gaius, Inst., I, 55, Patria potestas was asserted of the Galatians (Gaius,
ibid.), and of the Gauls generally (Caesar, B. G. 6, ig). However, among the
Gauls it seems to have included only minor children,or adult children as long

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ROMAN CONCEPTS

OF EQUALITY

265

Not even the free and adult Roman was in possessionof

a completecivicpersonality
unlesshis fatherweredead or had
emancipatedhim. We may thereforesuppose that thecommunitythatorganizedthe Septimontium
was in legal contemplationverysmallindeedand may have seemed to theoutside
world a tinyoligarchycontrollinga much largernumberof
subjectsand servants.
If theessentialequalityof cives had been maintained,
such
a community
had in it the seed of theBill of Rights. All that
wouldbe necessarywouldbe to extendcitizenship. And that,
of course,happenedin due time. First,nearlyall Latins,then
nearlyall Italians and a littleafter 200 A. D. nearly all
residentsof the orbis Romanus, were Roman citizens. If
all citizenswere equal this meant that practicallyall men
were, and we are very near the broad humanitarianism
of
the Declarationof Independence. In bothcases,let us recall,
" all men" neededinterpretation.BothJefferson
andCaracalla
supposedeveryonewouldunderstandthatwhen theysaid " all
men", they meant" all men, not includingwomen,children,
slaves and Indians not taxed ".

However,theequalityof politicalrightswhichin theancient

Roman state was one of the characteristics
of citizenship,
did
notexpandwiththe expansionof that citizenship. Indeed it
is likelythatit ceased to characterize
thecivitas Romana long
beforethe civitas beganitscareerof growth. It is at a very
early stage of Roman historythat we meet the distinction
betweena privilegedand unprivilegedcitizenship. How that
arose we cannot really tell, but we can guess with greater
or less plausibility.At one timeit was orthodoxto suppose
that theunprivileged
class of plebeianswerewhollyor chiefly
the conqueredoriginalinhabitantsof the city.' A different
viewis nowwidelyheldand one thatseems to me rathermore
as theychose to remainunder the paternal roof. The peculiarityof the Roman
institutionwas that it lasted as long as the fatherlived, unless he voluntarily
relinquishedit.
'This theory,widely accepted in the last generation,is substantially the
Niebuhr-Mommsentheory. The best and fullest discussion of the whole question is to be found in Botsford,The Roman Assemblies (i909), pp. I6-47.

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likely. Accordingto this view the plebeianswere gradually

of some
forcedintoa subordinatepositionby the usurpation
familychieftainswho had grownenormouslyin wealthand
consequentlyin power. Howeverthat may be, in that early
laterfilledwith
stageof RomansocietywhichRomantradition
storiesof seven kings,it had been fullyaccomplished. And
droveout theforeignkings,they
whena fewof thesechieftains
had no intentionof sharingtheirpower withotherfamilies
or groups. The gap betweenthe privilegedand unprivileged
becamewiderand widerand in theTwelveTables it wassought
beconnubirem
by forbidding
permanent
to makethedistinction
tweenthe twogroups.,
at thisperiod whatwe shall see throughWe havetherefore
of Rome. Some citizenshave capacities,
out the development
that the othersdo not have. There
powersand immunities
wereordines,rows,classesin the state.
we hear of fiveclasses,a word
In the Servianconstitution
whichafterpassingthroughmanyvariationshas come to mean
verymuch what it meantto ServiusTullius. The
politically
and apparently
belowall
was property
basis of theclassification
the classes, infra classem,9 there was a miscellaneous group of
citizens called proletarii.3

The purposeof the divisionintoclasseswas that of apportioningthe militaryand financialburdensof the state. All
1This famous provisionof the Twelve Tables can be interpretedin accordance with any desired hypothesis. Roman traditionasserted that it was one
of the few innovationsof the Code. I am inclined to accept the traditional
view. It is quite true that the domination of the patrician families had
already been much shaken by 450 B. C., but that need not have preventedthe
last attemptto constitutethemselvesan hereditarycaste.
2 Aulus Gellius,VI (VII),

I3, 3.
3About the meaning of this term, there will be learned dispute for many
more generations. To ascribe the word to the capacity of the poor as "begettersof children" may be, as v. Mayr has said, " eine fur diese naiven Zeiten
kaum glaubliche Ironie" (R5m. Rechtsgeschichte,vol. I, p. 5I), but it is not
certainthat those " naive times" would have consideredit ironical. According
to his own version,they are those who become citizens by being the offspring
(proles) of full citizens withouthaving the propertyqualificationwhich was
the general basis of citizenship. I cannot convince myselfthat this explanation is very much betterthan the other.

No. 2]

ROMAN CONCEPTS OF EQUALITY

267

the fiveclasseswerebased on the possessionof land and were

called assidui in oppositionto the landless proletarians.
Whetherthe latterhad any politicalfunctionsat all till the
timeof Appius Claudius(3I2 B. C.) has been debated,butat
any rate the privatelaw, even in the ancientcode, did not
place assiduus and proletariuson an equal footing. In proceduretheassiduusmustbe supportedby anotherassiduusas
vindex; the proletarianby either assiduus or proletarian.,
The curiousresultfollowsthat this provision,doubtlessintendedto confirmthe privilegesof the classifiedcitizen,was
likelyin practiceto workto his disadvantagesincehis panel of
vindiceswas morelimitedthanthatof his inferior.
The businessof fiscalorganizationof the community
was
detached fromthe duties of the chief magistracyafterthe
Twelve Tables. The termclassis is foundin the lex agraria
of I i i B. C.2 but it is likelythat evenat this timetheword
ordo was in use to denote the groups as theyappeared in
the censuslist. When Romancitizenswerefreedfromdirect
taxes in I67 B. C. the Servianclasses lost theirmeaningand
censorsmightwell have thrownthem all into a singleordo
of citizens. But theydid notdo so. They listed the citizens
in theorderof theirimportance. Therewerefirstof all those
were requiredto summonwhen they
whom the magistrates
called a senate. And of the rest, the timocraticdivision
was retainedlong afterits fiscal purpose had disappeared.
The citizensappeared in the album not alphabeticallynor
by residencebutby theamountof property
theypossessed.
thatordois not quitewhatthe term
It is obvious therefore
"class)" meansto us. The wordis used commonlyin Amerito indicatea groupof familiesthat believe
can communities
an hereditary
themselves
aristocracy. Theirbeliefis of course
sharplyand constantly
challengedby most otherfamiliesand
can hardlyreceive official
under a democraticconstruction
are
classes"
somewhatindefinite.The
The
sanction.
"upper
Romanordineson theotherhandwerenotindefinite,No one
I8, Tab. I, 4.
Bruns,Fontes6, p. 8I.

1 Bruns,
Fontes6, p.

2 C.

I. L.

I,200,37

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could have been in doubt as to what class he belonged to.

There was an album, a list, intowhicheach individualwas duly
chalked and he had but to read to know where he was placed.
And this album was not an unofficialor irresponsible list.
The censor made it. That is to say, duly elected migistratesof
superconsularrank were entrustedwith the task of doing just
that one thing,labeling and ticketingtheirfellow citizens.
How did the censor determine his ordines? For the most
part he depended on the swornstatementof the citizens listed
as to the amount of their property. But now that the classes
were no longer important,though theydoubtless still appeared,
what was the basis upon which he drew the line which set off
the firstordo from the others? The limits within which he
could be arbitrarywere made fairly narrow by unmistakable
popular opinion. This opinion would support him in exercising a slight moral supervision over those he classified. He
could, for example, pass over certain names when he made up
his list of senators,names that had been placed there in some
previous classification. But he could scarcely do so at will.
Unless his reason was one acceptable to the majorityof the
governingclasses, he acted at considerable peril. We mustnot
imagine that the famous cura morum was other than exceptional. In general the censor's work was still statisticaland his
clerks had more directly to do with it than he. All the
ex-magistratesindubitablybelonged to the firstordo and these
were supplementedby men of distinction., In a few cases, no
doubt the censormighthave reason for hesitatingbut generally
the supplementarylist was as certainin the minds of his fellowcitizens as of himself. Soon the ex-magistrates themselves
made a full senate untilby law no others could be selected.2
But the hereditaryprinciplewas not recognized. No man
was born into the senatorialordo or any other. By that I do
1 The firstname on the census list, the princeps senatus, was placed there
honoriscausa, and not because he was the wealthiestcitizen. Doubtless within
each ordo, graduationsin wealth were not observed.
2Lex Cornelia de XX quaestoribus,passed in 8i B. C. Tac. Ann. XI, 22.
The statementin the text is an inferencefrom the known provisions of the
law. It does not appear explicitlyin extant fragmentsof it.

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ROMAN CONCEPTS

OF EQUALITY

269

not mean that illustriousbirth conferredno distinction. On

the contrarythat was just what nobilitaswas, to wit, illustrious
birth. But it was a social and unofficialdistinction. It did
not place the nobilis in a group marked out by particularlegal
privileges. It is doubtless a fact that there is always a strong
tendencyon the part of a specially privileged group to make
its privileges hereditary. Indeed I like to suppose that the
struggle between the plebeians and patricians of which the
traditional manuals give so distorted a view, was essentiallyan
attempton the part of an ordowhichwas de facto almost hereditary,to make itself actually so.' The attempt failed. When
the hereditaryprinciple again enters the Roman constitutional
system,it comes fromabroad in the formof something like a
caste organization,ancient enough in the Mediterraneanworld
but essentiallyforeignto the Roman polity.
But if the hereditaryprinciplewas not legally recognized till
the Empire, the timocraticprinciple,that based upon wealth,
was franklyand fullyadmitted. We know that it was the basis
of the Servian constitutionas undisguisedlyas of the Solonic.
In all rude societies power is so plainly an incident of possessions that many of the refinements
of modern economic theory
would seem less like patadoxes than like axioms. The centuriate organizationof Servius enabled a small number of wealthy
men to outvote or at any rate to balance, a much larger number of poorer men. And in the tribe organizationwhich was
superimposed upon the centurieswe shall find the same thing.
A majorityof tribesdecided elections,not a majorityof voters.
The four urban tribes vastlyoutnumbered in individuals the
thirty-onerustic tribes into which the propertied classes were
gathered. The result was that wealth was political power so
long as the scantyrepresentationsof the thirty-onetribescould
be controlledby the great families.2
1 It will not be expected that any full discussion of this problem will be
attemptedhere. It seems better to hold with Botsford that the patricians
were never numerous. (POLITICAL SCIENCE QUARTERLY, VOl. xxi, pp. 498-526;
The Roman Assemblies, pp. I6 et seq.), and that they constituteda narrow
oligarchyafter the destructionof the monarchy.
I Whenever we hear of results of elections it is by number of tribes,as in

the trial of Coriolanus (Dionys. Hal. VII, 64, 6).

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This state of thingswe knowall too well in English and

Americanhistory.It was giventheunpleasantnameof Rotten
Borough systemin pre-Reformdays of England. In the
UnitedStatesit enableda fewthousandvotersin certainstates
to balancetenmillionsin New York or eightmillionsin Pennsylvania. It stillsubsistsin theglaringinequaltiesof districta vote in Chicagoor NewYork Cityalwayscounts
ingwhereby
as comparedwitha vote in Yapabout half in effectiveness
hankand Snohomish. Yet we maynote thisdifference.We
and similariniquitieswhileprofessing
tolerategerrymandering
and
an unqualifieddevotionto thedoctrineof a fundamental
equalityof citizens. The Romansdid not beimprescriptible
phrase that they hastenedto evade
gin witha mouth-filling
Their methodwas consciouslyemployed to
surreptitiously.
that wereassumed to be
weightto suffrages
securea different
values.'
of different
The ordines,par excellence,were the senatorsand the
knights. But therewereothers. It wouldbe quiteimpossible
to indicateheretheentirehistoryof the census. If we place
ourselvesat the time of Cicerowe findat least six ordines,
senators,knights,tribunesof the treasury,scribes,freeborn
(ingexui) and freedmen.2They were doubtlessunequal in
numbers,but theywere markedout by definiteand legally
recognizedprivileges. Onlythe firstthreeeversince the lex
Aureliaof 70,3 had the importantrightof sittingon juries,of
thealbumiudicum. The lastordodid notpossess
constituting
the ius honorum;i. e. theycould not hold the highermagistracies,whichin effectmeantthattheynever could be senacitizens,of whom afterthe
tors. Where newlyenfranchised
Italicwarstherewerea greatmany,were put is notaltogether
clear. AnalogywithGreekstateswouldsuggestthelast class,4
withthatsupposition.
but thereare difficulties
1 Cf. The statementof Cicero (Phil. VIII, 2, 7), ne dominarenturindigni.
2 CiC.

3 Asconius, p. I6.
in Cat. IV, 7, I6.
4This question has nothing to do with the allotmentof these novi cives to
the various tribes. In Athens, naturalized citizens had all rights except the
ius honorum (Demosth. in Neaeram, 92, I376). But then Athenian freedmen
were metics,i. e. not in the citizen class at all, so that the two formsof organization are not really parallel.

No. 2]

ROMAN CONCEPTS OF EQUALITY

271

A classification
that in theorywas revisedeveryfiveyears,
whichwas in themainbased upon property,
mightnot open
all careersto all talents; but it was something
less, muchless,
thana castesystem. Yet evenas it was it was notlikelyto be
popular. Even if it is hypothetically
possibleforeveryoneto
becomerich,thatpossibility
does not lessen the bitterness
of
as
a
politicalinferiority
to thosewho
matterof fact have not
becomeso. And the chancesof risingto the highestranks
are generallyconfinedto a ratherrestricted
groupamong the
ranksnotmuchbelowthe highest. The ascent is hardlyever
at
begunat thelowestrungof the ladder,but mostfrequently
some pointin themiddle. So, in thatexemplarof castearistocracies,the Ancien Regime in Prance, openingswere not
lackingto thetalents,if thosetalentstendedto the accumulationof wealth. More thanhalf of the noble houses existing
in theeighteenth
centurywereone or at most twogenerations
old. But it was not a popularsystemeven thougha wealthy
tax-farmer
might,notunreasonably,
hope fora barony.
on membersof different
Legal restrictions
classes,the rotten
as far
boroughsystemof the rustictribes,elicitedfewprotests,
as we can judge. Therewas in thelast century
of the republic
a determinedstrugglebetween the two highestorders for
effectivecontrolof the state,but it was not a strugglefor
for the maintenence
and intensiequality,buton thecontrary
ficationof existinglegal inequalities. But when public and
of unequal privilegeswas attempted,
social recognition
we do
hearof violentprotests.
The particularoccasionwas interesting
enough. Withdisof dressRomans had long been familiar. Obviously
tinctions
the dressof a wealthynoblewas moremagnificent
thanthatof
the generality
of the Roman mob., Besides,the magistrates
in ancienttimes and thesenatorsin the last decades of the
dress. This was extendedto
Republic had a distinguishing
1 The sumptuarylaws that were passed to restrictthe amount of ornament
and the quality of material,were not intended to equalize the appearance of
citizens but were passed in the interestsof public morality. At any rate that
reason was assigned to them,though the public moralitymay well have been
the resentmentof moderatelywealthymen at the ostentationof excessiveriches.

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some of the knightsunderAugustus., Apparentlythe tatus

clavus or thepurpleof senatorialcostumehad littleabout it
a group of
that was invidious. The senatorswere practically
and howeverconstituted
in fact,owed in theory
ex-magistrates
of theirfellowcitizens. In
theirelevationto thefreesuffrages
thesame waytheprivilegedseatsof the senatorsin thetheatre
seemed a reasonableperquisiteof their officialpositionand
weregrantedto themas earlyas I94 B. C.2 But in 67 B. C.
rowsbehindthesenLucius Othoassignedby law thefourteen
ators to theequites-that is to the secondordoof the official
census.3 In doing so he was apparentlyrestoringa privilege
whichhad been bestowedon themalmosteightyyearsbefore,4
and lost,perhaps,underSulla. Even the theearlieroccasion
had encounteredopposition,s
but the protestsagainstthelex
Roscia werenothingshortof violent. It was well enough for
Cicero,theson of an eques,to call the law lex omniumgratisordinicum splendore
fructusquoque
sima-quod honestissimo
estrestitutus.6He knew better,for he had been
iucunditatis
to rescuetheproposer
compelledto use his personalinfluence
fromsome of the consequencesof his unpopularmeasure.7
opposed by his soldierswhen
Augustushimselfwas violently
he attemptedto enforcethe law againstone of his veterans.8
enoughto cause thelaw
Indeed theoppositionwas determined
that is, on the
to lapse and it was not revivedtill Domitian,9
underthe AntonineCaesars
thresholdof that reorganization
whichgave the Romanstateso whollynewa coloring.
1 The capitalpassageis Ovid'sautobiography,
TristiaIV, IO, 29 et seq. Dio
thatthelatusclavuswas wornbythe
CassiusI, IX, 4. It has beenconjectured
equitesillustresor insigneswho had full senatorialcensus and not by the
qualification.Tac. Ann.I, 73; II, 59.
modiciwhohad onlytheold equestrian
2 Livy XXXIV,
II, 4, 3. This was doneapparently
Max.
Valerius
4-8;
54,
by themagistrates.
3 Livy,Epit. XCIX.
I VelleiusII, 32, 3. Horace,Ep. 4, I5. Cic., Phil. II, 44.
5 Livy XXXIV, 54 tellsus thatthemurmurs
wereloud and persistent.
6Pro Murena, 40.

I Plutarch,
Cic.

I3,

Plinyh. n. VII,

8 Appian,Bell. Civ. V,

I5.

9 Martial,V, 8, 7 et seq.

3L.

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ROMAN CONCEPTS OF EQUALITY

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and becomefixed in theirpolitOrdinesbegan to multiply

ical privileges. Much of this was done by Augustus,into
whose politicalscheme they fittedvery well., Dealing not
witha Romancitybuta Romanworld,he found and emphasizedthefactthatRomancitizenship
was itselfan ordo,distinct
fromand superiorto thevariousotherclassesof citizenshipin
theworld.2 Essentiallythatwas the politicalideal of Pompey,
in so manyways the precursorof Augustus.3 To insiston
thisparticular
typeof inequalitywas,as we have seen,thefundamentaltheoryof the citystate. Romancitizenship
was,as
a matterof fact,fairlywidelydistributed.Not onlyweremost
ItaliansRoman citizens,
butthatcitizenship
had been bestowed
on a great many individualprovincials. These accordingly
formedin theirownsubordinate
a privilegedand
communities
superiorordo.4 So thatforthe Mediterranean
worldunderthe
Romandominancemeantan increaseof thecompliprincipate,
catedsystemof inequalitiesalreadyexisting.
Augustus,we have seen,also increasedthenumberof ordines
withinthestateitself. That could easilyenoughbe done by
merereadjustment
of thecensussystem. But for him,a line
in thecensuswas notto be merelya statistical
matterinvolving
1 We have already noted the segregation of the knights into modici and
illustres. To the three ordines that furnishedthe three panels of iudices he
added a fourthordo, the ducenarii,who constitutedthe jury panel for petty
causes. (Suet. Aug. 32.)
'Cf. Augustus' political testamentin Dio Cassius.
3 Eduard Meyer: Die Monarchiedes Caesars und der Prinzipat des Pompeius.
It is usual to rate Ciceros political capacities ratherlow, but his own ideal of
the state was very much that of his "first citizen" Pompey; and his association with both Pompey and the young Octavian was peculiarlyintimate. Octavianus' choice of Cicero as a mentordepended,at least in part, on enthusiastic
admiration.
'There had been many cases in the last centuryof the Republic in which
Roman citizenshiphad been refused by individuals and communities. But
during the Empire it was an eagerly sought honor almost always. Roman
citizenshipwas held at that time in addition to other citizenshipsand not in
place of them. Alexandrine citizenshiphad a similarly privileged position.
Cf. Pliny, Epist. X, 6, 7, Io. The best known illustrationof the relation between Roman citizenshipand otherformsis the case of the Apostle Paul. Cf.
Mommsen,Die Rechtsverhkltnissedes Apostels Paulus, Ges. Sckr. III, 43i,
et seq.

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additionaldutiesto the censor'sclerks. A hesitantstep was

taken in the direction of giving these ordines a measure of

thatthemeansAugustusselected
permanency.It is significant
was thatslightmarkof social prominencegiven by preferred
seats in the theatreand circus. Not only those who were
rows,but all who
themselves
equitesmightenjoy the fourteen
or theirsons., However,as has
had everhad the qualification,
been mentioned,
the Roscianlaw fell into practicaldesuetude
afterAugustus. Therestilllurkedin the mindof theRomans
of theancientprinciplethatfull civeswerein legal
something
contemplation
equals.2
Voices had never been lackingto repudiatethe attempted
gradationof citizens.3 In the ideal State of Cicero's Laws,
based on wealth. "Nos ",
thereis no place foran aristocracy
he says in the Laws, " qui enimpaupertatem
cumdivitiisinter
esseaequalemvelimus."4 Yet in his ideal constitution,
homines
thecensorsare to classifypropertyand citizensas beforeexin pecunias aevitatis ordinispartiunto.5However,he is
carefulto tellus, politicalpowermustnot be made to depend
1 Suet.Aug. I4. At thistimethe sonsof senators
wereequitesas such. As
hereditary
it had long been practically
far as equestrianrankwas concerned
i. C. I. L.
so. Cic.Pro Plattc.I3, 32. Corn.Nep. Atticus,
thoughnotofficially
IX, 3I60, 1540; VI, 16i6.
2 Amongfull citizens,
actorsand personsof infamouslife were
bankrupts,
was regardedas a punishment
subjectto certaindisabilities.That,however,
and not as thecreationof a lowerorderof citizenship.Freedmenwerereally
suchas Latiniluniani,
and thelowerclassesof freedmen,
merelyhalf-citizens
oflaw onlya groupof resident
foreigners.
The dediticii,
werein contemplation
at firstperegrini
whosestatehad beenwipedout,and latera class of penalized
freedmen,
werenotcitizensat all.
3 In theincidentalreadyreferred
of thesenatorsin
to, thefirstsegregation
ex dignithetheatre,
Livyreports
thepopularfeelingin thesewords:demptum
et omnia
tate populi quicquid maiestatipatrum adiectum esset interpretantibus
et concordiaeet libertatisaequae
discrimin,atalia quibus ordines discernerentur

of thestateof mindof his

minuendae
esse. Livy'swordsare moresignificant
thanof I94 B. C. We shallnotethatthepopulusas suchhas
contemporaries
technicallater,and itselfindia dignitas-a termwhichbecomespractically
advocatedby Livy,thatwhichinsisted
cates the pointof view emphatically
world.
of Romancitizenship
in theMediterranean
position
upontheprerogative
4Cic. Dc Leg. II, 25.
5Ibid., III, I0.

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ROMAN CONCEPTS OF EQUALITY

275

on wealth. Thereare optimatesand plebs in the ideal state,

just as therehad always been in the city state,and Atticus
speakingas an avowed aristocratmakes theunqualifiedstate-

ment eam optimamrem pub/icamesse dico-quae sit in potestate optimorum.? But who are the optimi? Not indeed the
primi ordines of the census. Nec u/la deformiorspecies est
civitatis,says Scipio in the Republic, quam il/a in qua opulentissimioptimipUtantur.2 In hisviewtheruleofwealth
seemed

to be as much an arbitrarytyrannyas militarydomination

wouldbe.3 His real optimatesare representedby theoptimus
4 who uses his influence,
quisque et gravissimus
and
to restrain
theplebswhenitsignoranceor
merelyhis influence,
inexperiencemightlead it astray. He asks no other meed
and it mustbe willingly
thanveneration,
accorded. Scipio in
the Republicargues thecause of an aristocracy
of virtuetoo
warmlyto make it doubtfulthat it representedCicero'sown
matureview. The argumentruns as follows: Men are by
nature unequal-Cum hoc natura tulerit ut summi virtuteet
animo praeesentimbecillioribus.5 And again he speaks of summis et infimis qui sint in omni populo necesse est.6 But if it
is a naturalthing,the infimiand imbecillioresmust themselves

be awareof it,and if theyacted reasonablyitwouldbe equally

natural,ut hi etiam parere summis velint.7 The least disciplined and most anarchicalpeoples have manygradationsof
individualsand ranks.
Cicero knewof an infimusordo as well as of a summus;
morethanthat,thereweresummi,mediiand infimi.8 But we
cannotsay withcertainty
thatthe controlwhichhe assignedto
the optimateswas meantto be a legallyrecognizedset of pre1

Cic. De Leg., III,

I7, 37.

Cic. De Republica I,
3 Ibid., II, I24, 2.
4

5I.

Cic. De Leg. III, I7, 39.

5 Cic. De Rep.

6Ibid., I, 53.
7lbid., I, 5'.
8 Ibid., II, 69.

I, 51.

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rogatives. Doubtless that is what he would have preferreda governmentof gentlemen; yet he will not say so directly.
He qualifiesthe aristocraticdogma of Atticus which has already
been cited. And he is emphatic that the jibe to which Ovid
later gave voice, dat census konoresI should not be true. But
there are two things about which he is intentionallyvague.
The firstis the method by which optimates,the men excelling
in characterand mind,are to be selected. The second is the
question whetherthe controlof the optimatesis to be fixed in
statuteor depend on the venerationaccorded to their manifest
superiority. Are the good alone to have the ius honorum?
Are they alone only to exercise the tribunicianveto? Shall
only theirresolutionshave the force of law? Everything that
he says, at least all for which he assumes personal responsibility, is consistentwith a Houyhnhnm state, one in which the
severestcoercion is reasonable persuasion.
But if laws are made by the optimates, or if they have
merelya preponderatinginfluencein theirestablishment,they
are to be obeyed by optimatesand plebs equally. A rule of law
that applied to one class only would not be a law at all in the
highest sense. Of the ideal monarch Cicero says, aequitate
constituendasummoscum infimispari iure retinebat. fus enim
semnperest quaesitum aequabile neque enim aliter esset ius.2
Nor is the equal pressureof the law merelya device to win the
supportand good will of the governed. It is a principle in
itself. Equality and justice are to be sought for theirown sake
and not as a device for successful administration.3
In a question of technical law, equality of application need
scarcely be defended. Cicero writingas a lawyerto his lawyer
friendTrebatius derives fromthe great principle that equity is
equality, the doctrine that under the Twelve Tables, the time
within which prescriptivetitle can be established for a house
must be the same as for a farm,because both are alike immovables.4 But the equality there urged is merely the application
1 Ovid, Fasti, I, 217.
2 Cic.

De Off.II,

12.

De Leg. I, 49.
' Cic. Top. 4.

3 Cic.

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ROMAN CONCEPTS

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277

and is no morethan
of the same rule to similarcircumstances,
of analogy.
a grandiloquent
wayof statingthelogicalprinciples
Legal equality,-asCicero statesit in the Offices,is quite a
different
thing. It will have it that in the power to use
thecourtsthelaw knowsonlyone class,thatof civis.
Cicero'sdoctrineof equalityin effectis that in theprotection of propertyall citizensshould be treatedequally. In
politicalinfluenceon the community
theycertainly
oughtnot
to be, and perhapsnoteven in the exerciseof actual political
functions.What he would have said of the criminallaw,we
cannotbe sure,but it is likelythat hereas in the case of law
generallyhe would not have readilyassentedto the doctrine
forthesameact shouldvarywiththeoffender.!
thatpunishment
if
Now, thereare summi and mediiand infimiin thestate,
the law can hardlyhelp noticingthat fact. Damages for
iniuriaeweregiven by theTwelveTables,were classifiedand
extendedin the praetor'sedict and were supplementedby
criminal prosecutionunder the lex Cornelia.2 Injuries, howthe batteryor
ever,soon ceased to be whollyor even chiefly,
mayhemwhichthe Decemvirscontemplated. Insultand slander became the principaltypesand compensation
was calculated, we are told, ex facto, ex loco, ex persona.3 It could
scarcelybe the same if an ex-consulwas publiclyreviledor a
was purelya matter
fishmonger.Even if Cicero'sclassification
of social rank,thelaw had to takethatfactintoaccountin this
actionif in no other. To knowhowto penalizea wrong-doer,
it was necessaryto be sureof the standingor dignitasof his
victims. Even in perfectpoliticalequality,one manmightbe
dignitate
princeps. By hyperbolethedignitasmightriseeven
withoutchangingthe charhigher,as in the case of Pompey,4
acterof thestateas a freeassociationof politicalequals.
1 In general his doctrineof criminallaw was to make the punishmentfitthe
crime,not the criminal,noxiae poena par esto. De Leg. III, 20, 46.

2Girard Man. 5, pp. 400-402.

3 Gaius Inst. III, 225.
4 Cic. De Imp. Pomp. 14,
infimispar esse videatur.

42,

ut is qui dignitateprincipibus-excellit,failitate

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That rankwas the recognition

of superiormeritwas doubtless theoriginalconceptionof thetermdignitas; buttheword
soon becamea moredefinite
thing. VelleiusPaterculus,
speaking of thissame hyper-excellent
Pompey,says,paene omnium

vitiorum expers, nisi numerareturinter maxima, in civitate

libera dominaquegentiumindignari cum omnis civis iure haquemquam aequalem dignitateconspicereI Velleius
beret,pares,

is probablypunningon dignitasand indignari,but twothings

are noticeablein his statement.The superiordignitaswhich
Pompeydesiredwas no mere moral preeminence. It was a
recognizedrank,a principatewhichAugustuserectedinto a
definitemagistracy.And Velleius writingunderTiberiusis
acutelyawarehowcompletely
it contradicted
theacceptedand
ancienttheoryof theequalityof all citizens. His reveredTiberiusis represented
as himselfpreferring
the ancientideal,ut

potius aequalem civem quam eminentemliceretagereprincipem.2

But thatideal had longbeen ignoredin practiceand thisverbal reassertionof it comes justwhen the Empirewas being
reorganized
on an official
repudiation
of it.

A distinctionbetween honestiorand humilior,superior and

inferior,protentiorand tenuior had long existed. The Auctor

ad Herenniumknowsof an undesirablecitizenwho could be

described in superiorescontumax,in aequos etpares fastidiosus,

in inferiorescrudelis.s Caesar uses kumilioras an intelligible

term in speakingof Gallic communities.4And the homely

philosophyof PubliliusSyrusoftenhas occasion to note the
difference
betweenthe two in the everydaycontactsof life.
So he writes. Inferior rescit, quicquid peccat superior.5 By

the timeof Publilius,dignitaswas a matterof rankwhichcould

be possessed withoutmoral or social qualifications.This is

apparent from the line, Loco ignominiae est apud indignum

I

Hist. Rom. II,

2 Ibid., II,

29, 4.

124, 2.

3 Auct.ad Heren.4, 40.

4B. G. 6, 22; 8, 5I.

5 PubliliusSyrus(Ed. Bickford-Smith),
26I.

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ROMAN CONCEPTS OF EQUALITY

279

dignitas'and equally,perhaps,fromVirumbonumnaturanon
ordofacit.2
Publiliushas theattitudeof the manin thestreet. He was
furtheran Orientalslave who had growninto the habit of
obedienceand deference. No one could knowbetterthan he
of
that thefactof highersocial rankmeanta real superiority
power. But he knew more. He knewthat once rankwas
thosewho had
legallyrecognized,even by slightprerogatives,
stillmore.
it,arrogatedto themselves
Cuiplus licetquampar est,plus vultquam licet.3
That thisvirtualand legallyaccepted inequalitywas a corruptionof an olderand betterstatewas a commonplaceof the
senatorialreactionduringthe principate. But the equalityof
whichtheyregrettedthe loss was not the equalityof the Bill
of Rights. What Lucan and Tacitusdesiredwas the equality
of a Spartanoligarchyin whichcitizenshipwas the jealously
guardedprerogativeof a few,but in whichthe few were all
peers, the ius eximiumcivitatisRomanae.4 That is the real
of Tacitus,omnesexutaaequalmeaningof thebitterreflection
or
to the tyrannies
iussa
principisaspectare,5 his reference
itate
thatfollowedthe rejectionof equality." It is not to be supthesovereignty
of the
posed thatTacituswouldhave preferred
comitia.
of the pristinecity
Tacitus had no hope of a restoration
state. Justas clearlyas moderneconomichistorianshe knew
of small and poor states,when
thatequalityis a characteristic
men's possessionsare in fact equal and adequate to their
needs; 7 rebusmodicisaequalitasfacile habebatur.8When he
I

PubliliusSyrus,325.

2Ibid., 703.
Gellius 17, I4. Cf. also Publilius,nos.41, i66, I69, 237.
' Cic. In Verrem V, 63, 63.

3 Ibid., 142.

iTac, Ann. I, 4.
60p. cit.,III, 26.
7 Pound,Spiritof the CommonLaw, ch. V, esp. pp. 135-137. Beard, The
EconomicBasis of Politics,pp. 69.88.
8 Tac. Hist. IV, 8o.

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wrote, the political constitutionwas soon to receive its new

impulsion toward monarchyand bureaucracy under Hadrian.
O?dines were tabulated with precision and care and to each
ordo a dignitas of a real kind resultingin social and legal privileges was attached.
Thus the conception of dignitas takes on a new and concrete
sense. It means belonging to some ordo that had some other
ordo to look down upon. When there were a great many
ordinesit would go hard indeed if a man could not wrap himself in his dignityas compared to some one standing on a still
lower level. The lowest class of freedmen,the Latinus funianius, the very dediticius,' was at least, as compared with
a slave, the latter'ssuperiorin dignitas. Nay, the slaves themselves varied. A villicus was not the same thingas a member
of a gang of Apulian herd slaves, and the law will take cognizance of that fact. So if a man has a usufructin a slave, it is
ruled by Ulpian, he must use him secundum ordinem et dignitatem.2 It appears that servile rank depended in part on the
slave's cost. Here, then,were human beings whose " dignity"
could be determinedby an inspection of the bill of sale, a
criterion which Sir Robert Walpole is credited with having
employed in estimatinghis contemporaries.
However if it is true that any order necessarilyhad dignitas,
especially as compared with the one below it, that term was
especially employed of the upper orders,the senators,knights
and those immediatelyfollowingthem,who were the honestiores,
as distinguishedfrom the rest,the humiliores.
We findthis distinctionfull-blownin the later criminal law.
It is made with especial rigidityin the matterof punishment.
For many crimes the honestioreswere punished by exile to an
1 Mitteis in his introductionto the legal papyri collected by himself and
Wilcken announced the hypothesisthat the dediticii were identical with those
who paid poll-tax. There is, however,no shred of evidence that this is really
so. Indeed Mitteis is forced to the supplementaryhypothesisthat a later
Imperial ordinance extended the provision of the constitutionof Caracalla to
these poll-taxpayers. Every referenceto the dediticiiof the later Empire is to
a class of freedmenconvictedof crime and thereforedisfranchisedcompletely.

2 Ulpian,Dig.

7, I,

I5, 2.

No.

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ROMAN CONCEPTS

OF EQUALITY

28I

island, the kumiliores by compulsory service in the mines.,

Honestiores could not be flogged, though humiliores were.2
Similarlythe formercould not be subjected to torture3except
by a rescript of 308 A. D. in case of conviction for magical
practices,+ and perhaps still later, although the text is apparentlyearlier,in the case of treason.5
When did this distinctionenter the Roman law? 6 By the
time of the Antonines,that is, about the middle of the second
centuryit is completely recognized. There are now classes of
Roman citizens whose bodies are second-rate, only fiftyper
cent sacrosanct, as it were, and the exclamation of Cicero,
scelus verberare(civem RomanUm),7would find little echo in
the situationof I 50 A. D. In this,it is true,an older practice
was re-established,for the rods in the lictors'fasces and certain
ancient formulas indicate that flogging,even of citizens, was
not unknown to the hirsuteAhalae. Cicero himself,despite
his protest in the case of Gavius, regarded scourging as a
legitimate discipline. Magistratus nec oboedientem
et exin [?f]
noxium civem multa vinculis verberibusvecoerceto.Y But what
all citizensmightendure,even if contumelious,was no infringement of equality. We are not so certain that Cicero would
have willinglydivided Romans into two groups, one of which
was less precious to the state than the other.
1 The
referencesare too numerousto be cited here. Typical among themare
Dig. 48, 8, 3, 5; 2, 15, i8, 23, indeed the entire title I9 (De Poenis) of the
48th book. The material is well collected in the article of C. Jullian on
'Honestiores-Humiliores ", Dar. Sagi. Dict. des Atn., III, 235; and in
Mommsen'sStrajrecht,see indices s. v.
2 Dig. 48, I9, 28, 2.

3 Cod. Inst. 9, i8, 7, pr.

4 Ibid., 9, i8, 7.
5 Paul. Sent. 292.
6 It is not a little remarkable that this differentiation
of punishmentin
accordance with the person of the offender,is the most modern and seientific
theory of criminal law. We have but to change qualitas personae from a
phrase denotingsocial rank to one denotingindividual character,as determined
by environmentand heredity,to bring this principleof the criminallaw within
the doctrineof such a book as Saleilles, L'Individualisation de la Peine.
7 Cic. in Verr. V, 66, I70.

8 Cic. De Leg. III, 3, 6.

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to be sure,
Tacitustellsus how penaltiesweredifferentiated,
by Nero, accordingto the accused's rank,"and Suetoniusin
commentingon acts of Caligula2 certainlyimpliesthat the
condemnation
of menhonestiordinisto the mineswas practiof Justinian's
callyillegal. If we wereto acceptthetestimony
the distinction
is alreadyfoundin the fex Y7uliade
Institutes,
time
adutteris.3But theInstitutes
state the law of Justinian's
and anyamendments
thisfex had receivedwouldbe sureto be
embodiedin thestatement
of its provisions. Yet it is to be
noted that the distinctionmade here is not quite that of
and death for
the later law, viz. exile for the honestiores
the humiliores,but confiscationof half theirestatefor the
formerand scourgingtogetherwithexile forthe latter. It is
notquiteimpossible,despitethe dubiouscharacterof the testimony,thatthedistinction
does go back as faras Augustus.4
Under either the lex 9Yulia or Papia-Pappaea, senators and

to marryfreedwomen5
theirsonsand grandsons
wereforbidden
and an indefinite
groupof degradedwomen.6 Thereis some
disputeas to what the penaltieswere in case sucha marriage
was enteredintobutif theword" humilis" was in the original
textof thelaw we shoualdhave at leastone legislativerecognitionof the difference
at the very
betweenhumilisand honestus
beginningof the Empire.
Furtherwe findin Labeo, writing
underAugustus,the statementthattheactionof doluscould notbe broughtby a humilis
againstone qui dignitate
excellit. This actionwas thecreation
1Tac. Ann. i6, 5.
2 Suet. Gaius, 27.
3 Inst.

IV, I8, 4.

4There was a class of men whom the injured husband mightkill if he caught

themin adultery. This group included definitehumilespersonae and a certain

group of freedmen. Dig. 48, 5, 24, and C. 9, 9, 4. Apparentlythis was in the
original form of the law as well, and while it does not classify offendersas
humilioresand honestiores,it makes a distinctionin the criminal law which
before had merelypolitical significance.
5 We have the words of the lex Iulia et Papia quoted in Dig. 23, 2, 44, pr.
The two laws were apparentlyquite distinct(cf. Girard, Manuel 875, n. 4) but
the later jurists treated them frequentlyas a single measure under the name
quoted.
6 Specifiedin Just.Cod. 5, 5, 7, 2.

No. 2]

ROMAN CONCEPTS

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283

of Cicero's colleague, Aquilius Gallus, praetor in 66 B. C.' It

may well be that we must go as far back as that date for
a firstofficialnoticeof the-distinction. Taken literallyit might
mean the refusalof the action to an eques against a senator or
to a praetoriusagainst a consuiaris. It is not likely that these
more specific graduations were recognized. Probably Gallus
and Labeo had in mind the action of a freedmanor an infimis
against a senator.
There were other instances in which the honestiorwas at
a legal advantage compared withthe humilior. The dignitas of
some guardiansentitledthem to have a special actor appointed.2
In cases of bankruptcythe dignitas of one of equal creditors
entitledhim to slightpreferentialtreatment.3 To take a further
instance of what is not preciselya legal prerogative,it is suggested by Ulpian that a man qui claram dignitatemhaberese
praetendebatwas less likely than another to want police protection in case of need.4
Since dignitas was a matter of ordo,the increase of ordines
multiplied dignities. And in the Empire all those who had
held an officepromptlybecame membersof an ordoconstituted
by the present and former holders of it. Theoretically all
Roman citizens except freedmen and certain despised trades
were eligible to any officeand hence to any dignity. Even the
most shameful birthdid not exclude them.5 But in practice,
althoughwe hear of possibly wealthyhumiliores,6 appointment
1 Aquilius was a lawyer of an original and keen mind. He was the author
of the Aquilian stipulationas well as otherprocedural reforms. Of course his
edict may have said nothingabout the incapacity of certain persons to bring
the actio doli, but it would seem at least as likely that when he announced his
new action that he limited its application. We can only conjecture that the
reason for the limitationmentionedby Labeo was the fact that condemnation
meant infamia. However, many other actions involved that without being
therebyunavailable to an inferioragainst a superior.
2 Paul D. 26, 7, 24, pr.
3 Pap. D. 2, 14, 8.

4, 2, 23, pr.
5Dig. 50, 2, 6, pr. Freedmen,of course, were eligible to the imperial positions such as praefectusand procurator.
4 Dig.

6Dig.

47,

i,

6.

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to these officeswas a matterof wealth and the hierarchyof the

dignitieswas as timocraticas that of Servius and Solon. Again
we note the Roman quality in the fact that the dependence of
dignityon wealth was not surreptitious,but open and avowed.
A constitutionof the Diva Fratres,Marcus and Verus, required
decurions to be selected on a property qualification.' And
that same qualificationis implied for many other dignities.
The Romans gave scant recognitionto what our politicians
are pleased to call the dignityof labor. Both lawyerand layman were fullyconvinced that labor was a curse and the characteristicof a corrupt Iron Age. A manual trade was below
the dignityeven of a freedmanwho had once exercised it, provided that,being free,he chose to abandon it. Not even his
patron could demand services of him that involved resumption
of the work he had discarded.'
As far as women were concerned,a systemwhich assumed
that they needed a perpetual tutelage was not likely to profess
a desire to equalize the political prerogatives of the sexes.
Indeed women really had no dignitas of theirown at all, but
obtained whateverthey could pretendto, fromtheirfathersor
husbands.3 Once acquired, however, it was real possession.
Whatever the immunitiesand privilegesof a man of a certain
ordo were, women of that ordo enjoyed them also. But not
quite equally. In what we might call the sub-dignities,the
mature law of Rome seized upon a chance to affirmthe inequalities of sex. The wife of an ex-consul was lower in dignitythan an ex-consul himself,says Ulpian,4 and even than an
ex-praetor,because-and it may be as well to quote the text
literally-maior est dignitas in sexu virili. We do not know
exactly the legal nature of the preference which these subdignitieshad over each other. But it was substantial,if slight,
and not the mere presence or absence of a honorificmode of
address.
'Dig. 50, 4, 6.
2 Dig.

38,

I,

38,

i.

The phrase used is contra dignitatem.

3 Dig. I, 9, 8 and 9, Frag. Vat. I04.

IDig. 1, 9, I.

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285

In all cases whetherthe distinction

is betweenthe senators
as a bodyand the restof thepopulation,
or betweeneach ordo,
theclassification
of Romancitizensserveda twofoldpurpose.
It firstof all confirmed
thetendency,
growingeversinceAugustus,to makeRomancitizenship
a complexand nota simple
thing,in whicha finelygraded series of honorsran fromthe
divineprincepsto thealmostserviledediticius. If suumcuique
was the foundationof justice,'in the Empire at its highest
development,
it could be said thattherewereveryfewmento
whomthesame thingwas due. Everyordohad itslittlegroup
of immunities
which differentiated
its membersfromevery
other.
But the second purposewas a littlemore fatefulfor later
society. Each ordo had not only its own immunities
but its
ownmuneraor duties. The burdensand functions
of thestate
werecut intoextremelyfineportionsand distributed
to hundreds,perhapsthousands,
of groups. Bytheend of thefourth
century,these groupshad become locked castes into which
menwere bornand the honorsof whichtheycould be compelled to weareven if theyhad to be lashed into accepting
them. The freeand equal citizensof theancientcitystatehad
been turnedintoa community
in whichno one was reallyfree
and scarcelyanytwowereequal.
By a curiousparadox,one ordocut throughthewholestate
and byitsnatureresistedthe caste organization.Thatwas the
militaryorder. There was a time when citizenand soldier
were identical,when the centurieswere simplythe quirites
assembledfor the springforaysinto their neighbors'fields.
But that lay far in the past. The militaryclass had long
been professionalin greatpart,withpermanent
careersleading
to the highesthonors,and,comfort
and securityforthe survivorsof theendlesscampaigns. Verysoon the class received
extraordinary
privileges. The rules of succession,of testamentaryformand capacitywere completelytransformed
in
theirfavorand in favorof theirchildren. By thepeculium
1 Thismaxim,
one of thethreefamousmaximsof Justinian's
Institutes(Inst.
I, I, 3) is in thatformat leastas old as Cicero'sDc Off.I, 7, 2I, quod Cuique
obtigitid quisqueteneat.

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castrense,a filius familias, if a soldier, had almost full control

of his property. His irregular unions were treated as quasimarriages. He was excused from the onerous burden of
guardianship. Civilian lawyersmighttell themselvesthat some
of these formidable privileges were a concession to soldiers
propternimiam imperitiam.' The fact is that they created a
highly privileged class which conducted itself in public and
privateaffairsas privilegedclasses frequentlydo.
The paradox which I have mentioned lies in the fact that in
the ordo militaris,and there alone in the later Empire, equality of opportunitywas found. The organization of the army
was strictlyhierarchical. The militarycursus honorum was
elaborate and was carefullyfollowed. But militarycapacity,
oftenmere strength,could both accelerate it and break through
it. And since militarystatus could never be hereditaryin law,
it gave those whose spirit did not brook the beehive state organization,an avenue of escape. Thus the bureaucracywhich
labeled and docketed all Romans chieflyin order to render
had to allow to the
the state's militaryfunctionsmore efficient,
from its own.
militaryclass itselfan organizationvery different
to
Roman
attitude
the
the
What was
profound change that
separated the ancient civic order from the latter one? The
demarcation between firstclass and second class citizens,betweenthe honestioresand humiliores,was eminentlysatisfactory
to the firstclass ones. We have an excellent sample of one
of these firstclass citizensin the younger Pliny who in a letter
warns his friend Tiro of excessive familiaritywith the provinto maincials.2 He is advised to keep withinbounds sufficient
tain discrimina ordinum dignitatumque," the distinctionsof
rank and position," quae si confusa turbata permixta sunt,
Pliny is applying the
nihil est ipsa aequalitate inaequalius.
that
in
such
a
while
the play on words is
of
Cicero
way
phrase
I

Gaius, Inst. I,

I09.

2Pliny, Ep. 9, 5, 3.

sThe same idea and expressionis used by Callistratus (Dig.

ex conversationeaequali contemptiodignitatisnascitur.

2, i8,

9, pr.),

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ROMAN CONCEPTS

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heightened,the meaning is wholly destroyed., What the gentlemanfrom Lake Como means to say is simply that anything
remotelylike real equality would shake the foundationsof the
universeand he doubtless reflectswell enough the sentiments
of his class.
But there were other feelings. Though the state of Diocletian had finallychanged a communityof free men into a hive
of tax-drivenbees, we are not to suppose that all men felt that
the condition was desirable. The ancient parity of citizens
seemed to many a nobler and a loftierordering of the world
not only as the regrettedsplendor of a Golden Age but as the
philosophic ideal to which life should tend. To this the dominant philosophy,the Stoa, gave considerable aid,2 Stoic cosmopolitanismwas based on the theorythat there is a better
city than the city of marble and stone, and of that city the citizens are wise men who are all equal. Nor is that city in the
clouds. It is on earth and it needs only proper training to
make of Quirites the burghersof this cosmopolis. Just as in
the Christian brotherhood,there was neither slave nor free,
neitherGreek nor barbarian,man nor woman.3
It is, therefore,a Stoic commonplace which we find i'a
Seneca's prima autem pars est aequitatis aequalitas.4 It is
highly characteristic of this mealy-mouthed and unctuous
person that the equitable equality to which he refers is the
equality of death, to which, dear brethren,we are all alike
subject. But Seneca gets his phrases righteven if they ring
hollow when they are struck,and this is no exception. The
equal pressureof the laws, the absence of privileges,is a logical
inference from the Stoic conception of a communityof wise
men who are necessarily equal, wisdom being what modern
biologists mightcall a unit character.
1 Cic. Rep. I, 53, cum par habeturhonos summiset infimis. . . iPsa aequitat
iniquissima est.
2
Zeno, the founder of Stoicism,wrote a book on The State (iroairssa)t of
which only inconsiderablefragmentsremain. However, the general outlinesof
the Stoic theoryof societyare well enough known.

3Zeno wished men and women to dress alike. Many other Stoics desired
the same education for the sexes. Friedlander,SittengeschickteI, 504.
4

Sen., Ep. Mor.

30, I I.

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[VOL. XXXVIII

Stoicismbecame,we all know,a sortof establishedchurch.

If itsArticlesof Faithwereneverseriouslyput into practice,
that was becauseof one simpleconsideration.In all others,
actually
practicalexigenciesnotonlymightby Stoic principles
be consideredbut indeed,in the opinionsand practiceof many
Stoics, must be taken into account. And under practical
of thecommunity
was inevitable. But
exigenciesorganization
organizationwas taughtto the Roman states by the great
modelsof the HellenisticKingdomsin Asia and Egypt,and
the castesystemsof the
thesehad broughtto a highperfection
ancientkingdomsthey superseded. Thus the East gave to
Rome boththepracticalfactof inequality,
fixedintounescapable ordinesand regulatedby the needs of the state,and the
ideal of a perfectcityof equals livingin accordance
corrective
witha Law of Nature. But in theStoic Cosmopolis,by definition,therecouldbe no betteror worse,and no ruleof the one
by the other. Whetherit lay in the remotepast or the distant
future,that city was thoughtof as a conceivableordering
in existingand knownregions,not in the
of humanaffairs,
Hesperides. And its principleof equalitybecame a part of
the Romansystem,when the Stoic-trained
Syrianof Berytus,
thevastlyeruditeUlpian,qualifiedhisanalysisof legal relations

by the famous phrase-quod ad ius naturae pertinet omnes

homines aequales sunt.'

Therewas morethanone law of Nature,and we are apt to

speak of the law of Naturein the Stoic senseas thoughthere
wereno otherversionof it. The Stoic law of Naturewas an
ideal, just as the Platonic law of Nature was a barbarous
conditionfromwhich civilized man had happily escaped.
However,the law of Nature which in a barbaroussociety
means the rule of the stronger,means undercivilizationthe
rule of the better,2and this law of Nature we are told is
as eternalas Time.3 That is the communislex naturaethat
Cicero got from his philosophicmasters.4It is a law of
1 Ulpian, Dig. 50, 17, 32.
2 Plato,Laws,

III, 690.

3 DionysiusHal., Hist. I,

4Cic., De Rep. I, 17, 27.

proem.

No. 2]

ROMAN CONCEPTS OF EQUALITY

289

inequality. Cicero,to be sure,in anothercontext,knowsof a

law of Natureby whichall thingsare common., He may be
here merelytranscribing
Panaetiusand therefore
repeatinga
Stoic doctrine,
but it is not difficult
to reconcilethiswiththe
law of Natureas Plato and doubtlesstheNew Academyunderstoodit. All thingsare commonby Nature,butmen'scapacitiesto appropriatethiscommonproperty
varyconsiderably
by
anotherand equally valid naturallaw, and Cicero expressly
recognizesin thesame contextthe moraljustification
of this
appropriation.
Thus we end wherewe began,withtheDeclarationof Independence,with the Bill of Rights,with the Ulpian on the
Edict. The Romanstatebeganwitha parityof fullcitizensthepatresfamilias. It endedin the Diocletianmonarchy,
with
a vastdove-tailedand differentiated
heredsystemof practically
itarycastes. The principleof the citystate,that all full citizens werepeersand thatno non-citizens
had rightsat all, had
been modified
fortheworldstateintotheprinciplethatcitizens
as such were not legal peers and that non-citizens
scarcely
came intocontemplation.
And by a curiousinversion
what they lost as citizens,men
gainedas humanbeings. To theancientpolity,it would have
seemeda preposterous
to regardas equal, citizenand
absurdity
stranger,paterfamiliasand filiusfamilias,masterand slave,
manand woman. That paradoxtheStoic Law of Naturetook
as an axiom,and saved it in despiteof monarchyand feudalism for the EighteenthCenturyto nurse into the seed of
revolutions.So, too,AmericanBills of Rightshave saved it,
again in the teethof actual facts,for purposeswhichwe can
readilyenoughforeseeand whichwe can renderinnocuous
onlyby clearlyfacing,as the Romansdid,a contradiction
betweenideal and practicalpolitics.
MAX RADIN

UNIVERSITY OF CALIFORNIA,BERKELEY, CALIFORNIA

IDe

Off.I, 7, 2I.