dependent of the free-will of the person who is thereby attached to the community.

It is the regular and most frequent origin of citizenship, and its name is therefore very commonly used to designate the civic relation itself so arising (g).

It indicates birth in a legal marriage when the father himself has the right of citizenship (). The native place of the mother is, as a rule, without any influence; yet some communities had the peculiar privilege, that the citizenship of women belonging to them was transmitted to their legitimate children (i). Illegitimate children acquired by origo citizenship in the native place of the mother (k).

2. Adoption. (Note f.)

This does not extinguish the citizenship derived from birth; but the adopted son has then a double citizenship, which descends to his children (). Emancipation of the adopted child, however, destroys every effect of adoption, and therefore also this effect, which pertains to public law (m).

3. Manumission. (Note f.)

The manumitted slave could have no right by birth. On the contrary, he acquired by manumission the right of citizenship in the native town of the patron, which also descended to his children. If the patron had citizenship in several places, or if the common slave of several masters was manumitted by them, then a plural citizenship might arise by manumission (n).

(g) L. 6, pr. § 1, 3 ; L. 9, ad mun. (50, 1); L. 15, § 3 eod. ( jus originis). Other passages, certainly speaking more accurately, call the legal relation (of which origo is only the cause, and that not always) patria or civitas : L. 27. pr.; L. 30, eod.

(h) L. 1, § 2; L. 6, § 1 ad mun. (50, 1); L. 3, C. de munic. (10, 38). (i) L. 1, § 2 ad mun. (50, 1). It is not clear whether the child was a citizen in the native town of the mother alone, or in both places. The latter opinion is in itself more probable.

(k) L. 1, § 2 ; L. 9 ad mun. (50, 1).

(1) L. 15, § 3; L. 17, § 9 ad mun. (50, 1).

(m) L. 16, ad mun. (50, 1).

(n) L. 6, § 3; L. 7; L. 22 pr.; L. 27 pr.; L. 37, § 1 ad mun. (50, 1); L. 3, § 8 de mun. (50, 4); L. 2, C. de municip. (10, 38). As to the text and meaning of L. 22 pr. ad mun., comp. Zeitschrift für Geschichtliche Rechtswissenschaft, vol. ix. pp. 91–98. [Savigny, Vermischte Schriften, iii. 245.]

4. Election (Allectio) (0).

By this is to be understood the free gift of citizenship by the municipal magistrates, of the legality of which there could be no doubt, even if it were not expressly attested. Citizenship, with its consequences, was not extinguished by the mere will of the persons who had acquired it in any one of the methods above described (p). By legal marriage in a foreign state, the wife, indeed, did not properly vacate her native citizenship, but she was relieved during the subsistence of the marriage from the personal burdens (munera) connected with it (9). A similar relief from personal burdens, without complete dissolution of the original citizenship, was also allowed to a citizen raised to the dignity of a senator of the Roman empire and to his descendants (r); also to every soldier as long as his service lasted (s).

From the rules here laid down, it follows that one person could possess at the same time citizenship in several cities of the Roman empire, and consequently often combined in his person the rights, and had to bear the burdens, pertaining to the citizens of all these places (t). So to the native citizenship a later one might be added by adoption or allection, and both subsisted together (note b). In like manner, the manumitted slave might be brought into several civic relations by manumission (note n).

The acquisition of citizenship by manumission could, however, be asserted only of a complete manumission. The dedititii were not citizens in the municipality of their patron (§ 356); and the same holds of the Latini Juniani.

(0) L. 7, C. de incolis (10-39), 'allectio vel adoptio.' That in some MSS. vel is awanting, in others atque is found, does not affect the meaning. A more important variation is: 'allectio id est adoptio,' which Cujacius cites from MSS. without approving it (in iii. lib. Opp. ii. 737). This would entirely exclude allection as a particular mode of acquiring citizenship, although there is no reason whatever to doubt of it.

(p) L. 6 pr. ad mun. (50, 51); L. 4, 5, C. de municip. (10-38). Dismission by the municipal authorities must have been as necessary as allection by them.

this

(q) L. 37, § 2; L. 38, § 3 ad mun. (50, 51); L. 1 C. de mun. (10–62). (r) L. 23 pr.; L. 22, § 4, 5, ad mun. (50, 1).

(s) L. 3, § 1; L. 4, § 3, de muner. (50, 4).

(t) This proposition appears to contradict Cicero, pro Balbo, cap. ii. : 'Duarum civitatum civis esse nostro jure civili nemo potest.' But in passage he speaks of communities outside of the Roman state, which subsisted as sovereign states alongside of it. We speak of communities within the Roman empire.

On the other hand, however, it was conceivable that a person might have citizenship in no community, although certainly this case did not often occur. It necessarily took place when a foreigner was received as a resident into the Roman empire without becoming by allection a citizen of any municipality (note o); so, too, when the citizen of any town was released from its municipal connection (note p) without being received into another community; finally, among the freedmen of the lowest class, who were dedititiorum numero, and belonged to no community (u).

SECT. IX.-(§ 352.)

THE ROMAN DOCTRINE OF ORIGO AND DOMICILIUM.

I. ORIGO (continuation).

The great difference which originally existed between the constitution of the cities of Italy and of the provinces might easily lead to the erroneous supposition, that the rules here stated extended only to the municipal territories and citizenship in Italy, not in the provinces; but in fact there was hardly any difference.

The municipal territories (territoria) were just as clearly defined in almost all the provinces (a) as in Italy. Their

(u) Ulpian, xx. § 14. [Bar (pp. 75-77) disputes the correctness of these three categories of persons without origo, and argues that every inhabitant of the empire must have belonged as an 'active or a passive citizen' to some municipal territory. His remarks on the first two heads are inconclusive. He thinks it probable that the dedititii generally belonged to some civitas, if not as active, yet as passive citizens. Otherwise they would have enjoyed an immunity from municipal burdens, the existence of which cannot easily be admitted in regard to a class of persons in other respects under such serious disabilities. As they were reckoned among the freedmen (Puchta, Inst. ii. § 213), it is probable that they belonged to the civitas in which their patron had his special citizenship."]

(a) Egypt, which had a constitution distinguished in every respect by great restrictions, must be excepted. Thus it had no proconsul or proprætor, but only a præfectus augustalis of lower rank (Dio Cass. 51, 17; 53, 13; Tacitus, Hist. 1, 11; Digest. 1, 17). In like manner there were only districts (Nomes), no urban communities, and only in Alexandria was there a right of citizenship (Plinius, Epist. x. 5, 22, 23).

D

limits, as well as their influence on the liability to municipal burdens, particularly in the villages belonging to the cities, frequently gave occasion to lawsuits even in the provinces. In this respect only is a distinction noticed, that in many provinces, especially in Africa, the municipal territories did not exhaust the whole soil of the country; since there were there in the possession of many private persons, as well as of the Emperor, very extensive tracts of country devoted to pasture (saltus), which were quite independent districts, and belonged to no urban territory (b).

This doctrine of municipal citizenship arising by birth, manumission, etc., is laid down by the ancient jurists in regard to provincial towns, without distinguishing them in any way from those of Italy (c). The same may be said of the application of this law to municipal burdens, as well as to the exemptions from these burdens (vacatio and immunitas) (d).

Against so manifold and unambiguous testimonies, a passage of Ulpian is wrongly alleged, to prove that in the provinces no regard was paid to jus originis, but only to domicilium (e).

We may here make an observation (which is not unimportant for the understanding of our law sources) as to the meaning of the phrases municipium and municeps.—The original meaning of these words has been doubtful and controverted not merely in modern times; it was so among the Romans themselves. These doubts are partly of a verbal, partly of a real, and therefore of an historical nature (ƒ).

(b) Agennius Urbicus, de controversiis agrorum, pp. 84, 85 of the Gromatici veteres, ed. Lachmann, Berol. 1848.

(c) L. 1, §2; L. 37, pr. ad mun. (50, 1), (Ilium, Delphi, Pontus); L. 2, C. de municip. (10, 38), (Aquitanian towns); L. 7, § 10, de interd. et releg. (48, 22).

(d) L. 8, pr. L. 10, § 1, de vacat. (50, 5); L. 5, § 1, de j. immunitatis (50, 6).

(e) L. 190, de V. S. (50, 16): 'Provinciales eos accipere debemus, qui in provincia domicilium habent, non eos, qui in provincia oriundi sunt.' This passage, like so many others of the same title, has in the Digest a false appearance of generality, while originally it could have only a particular application, which cannot now be ascertained. Compare upon this passage, Gundlingiana, St. 31, N. 2, pp. 34-43; Conradi Parerga, pp. 488-506; Hollweg, Versuche, p. 6. In the prohibition of marriage between Roman provincial officials and the women of the province, the terms of L. 38 pr. de ritu nupt. (23, 2), are directly the reverse: 'inde oriundam, vel ibi domicilium habentem uxorem ducere non potest;' where it is quite an arbitrary proceeding to explain, as many do, the vel by id est.

(f) See especially Niebuhr, Hist. of Rome, ii. 36-88, 3d Engl. ed.

But for our purpose we may omit this difficult investigation, as the usage of the words was afterwards fixed beyond a doubt in the following way. After the Lex Julia conferring citizenship on all Italians, municipium was the regular designation of one principal class of Italian cities,—those, namely, which had not been first founded as communities from Rome, in contradistinction to the other principal class, the colonia (g). The name municipium, which is not rare even in the provinces, was by no means generally transferred to them at the time when citizenship was communicated to the whole empire, and consequently to all the communities. If, then, an urban community in general were to be indicated without distinguishing between municipia and colonia, between Italy and the provinces, the regular phrases for that were respublica and civitas. Municeps, however, appears in the ancient jurists as the common term for every citizen of such a community, without respect to the distinction just mentioned, and therefore has the same generality as the phrases respublica and civitas (h). For this difference in the extension of the two kindred phrases a satisfactory reason can be assigned. If only the inhabitants. of the proper municipia had been called municipes, hardly See also a programme of Rudorff, which is printed as preface to the Latin Lectionskatalog of the University of Berlin for the winter Semester of 1848.

(g) In the Lex Julia Municipalis the regular and repeated enumeration of the urban communities in Italy is as follows: municipium, colonia, præfectura, forum, conciliabulum. Haubold, Monumenta Legalia, N. xvi. It is nearly the same in the Lex Rubria (ib. N. xxi.).

(h) L. 1, § 1, ad mun. (50, 1). Et proprie quidem municipes appellantur muneris participes, recepti in civitatem, ut munera nobiscum facerent; sed nunc abusive municipes dicimus suæ cujusque civitatis cives, utputa Campanos, Puteolanos.' (In § 2 the same phraseology is applied to Ilium and Delphi.) So, too, in L. 23 pr. eod. The abusive has here a twofold meaning: First (and this is Ulpian's main intention), in contradistinction to the original, antiquated signification above referred to, which is indicated in Ulpian's preceding words. But, secondly, in this other meaning, that municeps was applied not merely to municipia, but also to colonies and provincial towns. These last occur in § 2; but Puteoli was certainly a colony since the time of Nero. Tacitus, Ann. xiv. 27. In the first reference, the abusive phraseology (municeps for civis in general) occurs as early as Cicero, ad fam. xiii. 11: 'meos municipes Arpinates;' pro Cluentio, 16: municipum suorum dissimillimus;' and de legibus, ii. 2. A very accurate distinction is made in the Lex Julia Municipalis, lin. 145 (Haubold, p. 129): municipes, coloni, et qui ejus præfecturæ erant' (comp. lin. 159163). And yet this very law may have mainly conduced to the later general signification of the expression municipes, as it embraced the citizens of Italian towns of all classes without distinction, and at the same time bore the name, Lex Julia Municipalis.

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