The Constitution of Cities

When Rome expanded, its territory came to include existing towns and their surrounding territories. Some were included in Roman territory as civitates liberae et foederatae (such as Marseilles); others were subjugated.

Under Roman rule they naturally lost their power to act as internationally independent actors and to have an army and, once incorporated into the imperial administration, they had (with some exceptions) to pay taxes to Rome. Rome sought to befriend the ruling classes by granting them citizenship, since this cemented its control. Thus the cities could continue to handle their own law and affairs and usually kept their existing constitution (lex loci) and administrative structure. The constitutional differences between towns slowly disappeared. The grant of Roman citizenship in AD 212 reduced their independence still further. It seems that by the end of the third century, if not before, all towns were treated equally by the imperial administration. Some privileges or special rules remained, such as the admissibility to the decurionate of sons of a marriage between a decurion’s daughter and a non-curial in Antioch²¹ or immunity from guardianship over children not from Troy.²² Some towns enjoyed the ius Italicum,²³ which probably implied freedom from the obligation to pay land tax (tribute). What remained of citizenship of a town was the liability for public duties and functions and domicile (the origo: see below, 343-4). Local administration remained the domain of the cities, albeit once again under the control of the governor. He restricted himself to keeping order in towns. But even this modest aim might involve considerable influence on local constitutions, such as fixing the number of decurions or supervising elections.²⁴

Roman towns were usually ruled by local elites, represented in local councils (curiae) whose members were called decuriones (the remainder of the citizens being classified as plebs).

We find these designations in legal texts for all towns. Perhaps the Romans imposed their model and terminology on peregrine towns, but it is also possible that it was a widespread Mediterranean model and that the Roman terms are used generically. Election to the council may originally have been the rule (although it certainly was not universal), but from the second century AD co-option was standard. As a rule the town councillors chose their sons (curiales) as candidates. The decurions also had to meet a minimum wealth requirement. In this way they formed a local elite. Theoretically they were kept in check by the governors, but the introduction in the middle of the fourth century of defensores civitatis (‘defenders of the town’) appointed by the emperors shows that more control was needed.²⁵These officials had to guard against mismanagement and to safeguard proper justice. Other offices appear after the beginning of the fourth century, such as the curator civitatis and pater civitatis. All being appointed by the imperial administration, they slowly encroached upon the traditional role of the councils and magistrates. By the end of the fifth century the role of the curia was considerably diminished.²⁶

We see in the east under Anastasius (AD 491-518) how decisions previously taken by the council were now formally delegated to a group of the most important locals, including the bishop and the largest landowners. This development is probably due to the increasing presence of wealthy imperial officials in towns, who were not subject to the decuri- onate. Some of these officials may have been the sons of those decurions. In the east the council continued to exist alongside these new oligarchies, but probably only as a body of persons subject to public duties. In the west the curiae enjoyed a longer life, probably owing to their function regarding gesta municipalia, which were (also) used as public records for private matters.²⁷ But in both cases we see a decline in public building, maintenance of streets, and public services.

In both parts of the empire the rise of the bishop in administration is remarkable. According to Liebeschuetz, this shift was more than simply the continuation of local oligarchies under a different name or setting: the bishop stood next to the council and was part of the larger organization of the Church. But his rise was also due to the weakening of the local administrative system.²Everyone in a town will have been equally subject to criminal law, provincial law, and administrative law, whether by virtue of existing Roman law or law established by the emperor or the governor. But particular rules of a town on summoning people to carry out functions, or other rules of this kind, could continue to apply. Likewise, we see regional differences in administration. Since from the third century all towns were equally subject to the imperial government (and since Diocletian Italy had been treated in the same way as any other province), a person’s home-town now had purely administrative significance: as origo it determined who was eligible size=2 face=Arial>- or could be summoned - for the honorific functions (honores) and public duties (munera) of a town; as such it had a role throughout administrative law. As a criterion, the origo became widely used (for example, for the corporations for imperial tasks: see Section 6). But it was not a criterion based on heredity; and public obligations or professions did not become hereditary. The attribution of origo followed the rules for citizenship. Citizenship was automatically accorded based on the criterion of descent: a person born of a legitimate marriage became a citizen of his paternal home-town; one born of an illegitimate marriage or a ‘natural’ child became a citizen of the maternal home-town. And even those obligations which were imposed on heirs of members of a public body in the course of the third century (such as the navicularii: see Section 6) or on a landowner (as with munera patrimoniorum) were imposed on a person on taking possession of the assets which were registered as liable with the corpus or land according to the fiscal registration - and not merely because of being heir. Similarly the origo was decisive in the fourth and fifth century in the case of the colonate, a situation in which somebody was subjected to the owner of a particular estate, although here the origo was changed from the home-town to the fiscal registration of the particular land. In view of its importance, much administrative law dealt with questions of origo and conflicts of liability regarding public obligations. To the origo further criteria might be added, like a requirement of sufficient capital. These were the basis for nomination, after which a formal imposition determined the selection. Elaborate rules were issued on these matters.

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Source: Johnson David (ed). The Cambridge companion to Roman Law. Cambridge University Press,2015. — 554 p.. 2015

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