The History of Rome (Mommsen)/Book 2/Chapter 1

by Theodor Mommsen

 

CHAPTER I.

 

CHANGE OF THE CONSTITUTION. LIMITATION OF THE POWER OF THE MAGISTRATE.

 

Political and social distinctions in Rome. The strict conception of the unity and omnipotence of the state in all matters pertaining to it, which was the central and social principle of the Italian constitutions, placed in the hands of the single president nominated for life a formidable power, which was felt perhaps by the enemies of the land, but was not less heavily felt by its citizens. Abuse and oppression could not fail to ensue from it, and, as a necessary consequence, efforts were made to accomplish its limitation. It was. however, the grand distinction of the efforts after reform and the revolutions in Rome, that there was no attempt to impose limitations on the community as such or even to deprive it of corresponding organs of expression—that there never was any endeavour to assert the so-called natural rights of the individual in contradistinction to the community—that on the contrary the attack was wholly directed against the form in which the community was represented. From the times of the Tarquins down to those of the Gracchi the cry of the party of progress in Rome was not for limitation of the power of the state, but for limitation of the power of the magistrates; nor amidst that cry was the truth ever forgotten, that the people ought not to govern, but ought, on the contrary, to be governed.

That struggle developed itself within the burgess-body, by side with it ran another movement, the cry of the non-burgesses for equality of political privileges. Under this head are included the agitations of the plebeians, the Latins, the Italians, and the freedmen, all of whom (whether they may have borne the name of burgesses, as did the plebeians and the freedmen, or not, as was the case with the Latins and Italians) were destitute of, and laid claim to, political equality.

A third distinction was one of a still more general nature; the distinction between the wealthy landholders and those who had been dispossessed or had become impoverished. The civil and political relations of Rome led to the rise of a numerous class of farmers—partly small proprietors who were dependent on the mercy of the capitalist partly, small temporary lessees who were dependent on the mercy of the landlord—and in many instances deprived individuals as well as whole communities of the lands which they held, without affecting their personal freedom. By these means the agricultural proletariate became even at an early period so powerful as to have a material influence on the destinies of the community. The urban proletariate acquired political importance only at a much later epoch.

On these distinctions hinged the internal history of Rome, and, as we may conjecture, not less the history, totally lost to us, of the other Italian communities. The political movement within the fully-privileged burgess-body, the war between the excluded and excluding classes, and the social conflicts between the landholders and the non-landholders—variously as they crossed and interlaced, and singular as were the alliances they often produced—were nevertheless essentially and fundamentally distinct.

Abolition of the life-presidency of the community. As the Servian reform, which placed the metoikos on a footing of equality in a military point of view with the burgess, appears to have originated from considerations of an administrative nature rather than from any political party-tendency, we may assume that the first of the movements, which led to internal crises and changes of the constitution, was that which sought to accomplish the limitation of magisterial power. The earliest achievement of this, the most ancient opposition in Rome, consisted in the abolition of the life-tenure of the presidency of the community; in other words, in the abolition of the monarchy. How necessarily such a change was the result of the natural development of things is strikingly demonstrated by the fact, that the same change of constitution took place in an analogous manner through the whole circuit of the Italo-Grecian world. Not only in Rome, but likewise among the other Latins, as among the Sabellians, Etruscans, and Apulians—in fact, in all the Italian communities, just as in those of Greece—we find the rulers for life of an earlier epoch superseded by annual magistrates. In the case of the Lucanian canton there is evidence that it had a democratic government in time of peace, and it was only in the event of war that the magistrates appointed a king, that is, a magistrate similar to the Roman dictator. The Sabellian civic communities in like manner, e. g. those of Capua and Pompeii, in later times were governed by a "community-manager" (medix tuticus) from year to year, and we may assume that similar institutions existed among the other national and civic communities of Italy. In this light the reasons which Led to the substitution of consuls for kings in Rome need no explanation. The organism of the ancient Greek and Italian polity, through its own action and by a sort of natural necessity, produced the limitation of the life-presidency to a shortened, and for the most part, an annual, term. Simple, however, as was the cause of the change, it might be brought about in various ways; a resolution might be adopted on the death of one life-ruler not to elect another—a course which the Roman senate is said to have attempted after the death of Romulus; or the king might voluntarily abdicate, affirmed to have been the intention of King Servius Tullius; or the people might rise in rebellion against a tyrannical ruler, and expel him.

Expulsion of the Tarquins from Rome. It was by this latter method that the monarchy was terminated in Rome. For however much the history of the expulsion of the last Tarquin, "the proud," may have been interwoven with anecdotes and spun out into a romance, it not in its leading outlines to be called in question. Tradition credibly enough indicates as the causes of the revolt hat the king neglected to consult the senate and to complete its numbers; that he pronounced sentences of capital punishment and confiscation without advising with his counsellors; that he accumulated immense stores of grain in his granaries, and exacted from the burgesses military labours and task-work beyond what was due. The exasperation of the people is attested by the formal vow which they made man by man for themselves and for their posterity that thenceforth they would not tolerate a king; by the blind hatred, with which the name of king ever afterwards was regarded in Rome; and above all by the enactment that the "king for sacrifice" (rex sacrorum)—whom they considered it their duty to create that the gods might not miss their accustomed mediator—should be disqualified from holding any further office, so that this official was at once the first in rank and the least in power of all the Roman magistrates. Along with the last king all the members of his gens were banished—a proof how close at that time the gentile ties still were. The Tarquinii transferred themselves to Cære, perhaps their ancient home (P. 132), where their family tomb has recently been discovered. In the room of one president holding office for life two annual rulers now were placed at the head of the Roman community.

This is all that can be looked upon as historically certain in reference to this important event.^[1] It may easily be conceived that in a great community with extensive dominions like the Roman, the royal power, particularly when it had been in the same family for several generations, would be more capable of resistance, and the struggle would thus be keener, than in smaller states. There is, however, no certain indication of foreign states mingling in the struggle. The great war with Etruria (which, moreover, has been placed so close upon the expulsion of the Tarquins only perhaps in consequence of chronological confusion in the Roman annals) cannot be regarded as an intervention of Etruria in favour of a countryman who had been injured in Rome, for the very sufficient reason that the Etruscans, notwithstanding their complete victory, neither restored the Roman monarchy, nor even brought back the Tarquinian gens. Powers of the consuls. If we are left in ignorance of the historical connections of this important event, we are fortunately in possession of clearer light as to the nature of the change which was made in the constitution. The royal power was by no means abolished, as is shown by the fact that, when a vacancy occurred, a "temporary king" (interrex) was nominated as before. The one life-king was simply replaced by two year-kings, who called themselves generals (prætores), or judges (judices), or merely colleagues (consules).^[2] The collegiate principle, from which this last (and subsequently most current) name of the annual kings was derived, assumed in their ease an altogether peculiar form. The supreme power was not intrusted to the two magistrates conjointly, but each consul possessed and exercised it for himself as fully and wholly as it had been possessed and exercised by the king; and, although a partition of their functions probably took place from the first (the one consul for instance undertaking the command of the army, and the other the administration of justice), that partition was by no means binding, and each of the colleagues was legally at liberty to interfere at any time in the province of the other. Thus, where supreme power confronted supreme power and the one colleague forbade what the other enjoined, the consular commands neutralized each other. This peculiarly Roman, or at any rate Latin, institution of co-ordinate supreme authorities (which in the Roman commonwealth on the whole approved itself as practicable, but to which it will be difficult to find a parallel in any other considerable state), manifestly sprang out of the endeavour to retain the regal power in legally undiminished fulness. This motive led them not to break up the royal office into parts, or to transfer it from an individual to a college, but simply to double it, and by that course, if necessary, to neutralize it through its own action.

Term of office. A similar course was followed in reference to the termination of their tenure of office, for which the earlier interregnum of five days furnished a legal precedent. The ordinary presidents of the community were bound not to remain in office longer than a year, reckoned from the day of their entering on their functions;^[3] but they ceased to be magistrates, not upon the expiry of the set term, but only upon their publicly and solemnly demitting their office: so that in the event of their daring to disregard the term and continuing their magistracy beyond the year their official acts were nevertheless valid, and in the earlier times they scarcely incurred any other than a moral responsibility. The inconsistency between full sovereignty and a set term assigned to that sovereignty by law was so vividly felt, that its tenure for life was only avoided by means of the magistrate declaring his own (in some sense free) will in the matter, and the magistrate was not restricted directly by the law, but only as it were induced by it to restrict himself. Nevertheless this tenure of the highest magistracy for a set term, which its holders but once or twice ventured to overstep, was of the deepest importance. As an immediate consequence of it, the practical irresponsibility of the king was lost in the case of the consul. The position of the king indeed in the Roman commonwealth was under and not above the law; but, as according to the Roman view the supreme judge could not be prosecuted at his own bar, while the king might perpetrate a crime, there was for him no tribunal and no punishment. The consul, again, if he had committed murder or treason, was protected by his office only so long as it lasted. On his retirement he was liable to the ordinary penal jurisdiction like any other burgess.

To these changes of a prominent nature, affecting the principles of the constitution, other restrictions were added of a subordinate and administrative character, some of which nevertheless produced a deep effect. The privilege of the king to have his fields tilled by taskwork of the burgesses, and the special relation of clientship in which the metœci as a body must have stood to the king, ceased of themselves with the life-tenure of the office.

Right of appeal. Hitherto, in criminal processes as well as in fines and corporal punishments, it had been the province of the king not only to investigate and decide the cause, but also to decide whether the person found guilty should or should not be allowed to appeal for pardon. The Valerian law now (in 245 ^[509]) enacted that the consul must allow the appeal of the condemned, where sentence of capital or corporal punishment had been pronounced otherwise than by martial law—a regulation which by a later law (of uncertain date, but passed before 303 ^[451]) was extended to heavy fines. In token of this right of appeal, when the consul appeared in the capacity of judge and not of general, the consular lictors laid aside the axes, which they had hitherto carried by virtue of the penal jurisdiction belonging to their master. The law however threatened the magistrate, who did not allow due course to the provocatio, with no other penalty than infamy—which, as matters then stood, was essentially nothing but a moral stain, and at the utmost only had the effect of disqualifying the infamous person from giving testimony. Here too the course followed was based on the same view, that it was in law impossible to diminish the old regal powers, and that the checks imposed upon trjp holder of the supreme authority in consequence of the revolution had, strictly viewed, only a practical and moral value. If therefore the consul acted within the old regal jurisdiction, he might in his actings perpetrate an injustice, but he committed no crime, and so was not amenable for what he did to the penal judge.

Restriction on the delegation of powers. A limitation similar in its tendency took place in the civil jurisdiction; for to this epoch probably belongs the change, by which the right of the magistrates, after adjustment of a cause, to commit to a private person the investigation of its merits was converted into an obligation to do so. It is probable that this was accomplished by a general arrangement respecting the transference of magisterial power to deputies or successors. While the king had been absolutely at liberty to nominate deputies but had never been compelled to do so, in the case of the consul the right of delegating his powers seems to have been limited and legally restricted in a twofold manner. In the first place such comprehensive delegations of power—themselves partaking of the splendour that environed the king—as were conferred on the warden of the city in relation to the administration of justice, and on the master of the horse in regard to the command of the army, virtually ceased upon the introduction of annual kings; for the appointment of a warden of the city, which still was made for the few hours during which the consuls had to absent themselves from the city in order to take part in the Latin festival, was a mere form, and was treated in that light. It was in fact one of the objects attained by putting the supreme magistracy into the collegiate form, that a magistrate-depute for the administration of justice was only required in rare exceptional cases; and although in war the commander-in-chief could not be prohibited from intrusting the command even of the whole army to another, such a deputy now took his place as simply the adjutant (legatus) of the general. The new republic tolerated neither king, nor lieutenant giving himself forth as the king's alter ego; but the consul was at liberty, if the circumstances appeared to require such a step, temporarily to restore the regal office under the title of a dictatorship, and to nominate a person invested with plenary authority, who suspended at once the powers of the nominating consul and those of his colleague, and, as an extraordinary measure, once more wielded for the time being the old royal powers in all their compass.

The second restriction imposed on the consuls as to the delegation of their powers was perhaps still more important in its effects. While in his sphere as commander-in-chief the consul retained undiminished the right of freely delegating all or any of his functions, in the province of his civic functions delegation was prescribed in certain cases and was prohibited with reference to all others. The former class of cases, in which the president of the community had in theory competent jurisdiction, but in which he was at the same time obliged to act only through the medium of deputies appointed by him, included not only civil processes, but those criminal causes which the king had been accustomed to dispose of through the two "trackers of murder" (quæstores, P. 68, 159), and also the important charge of the state-chest and of the state-archives, which these two quæstors undertook in addition to their previous functions. Thus the quæstors now became in law, what they had for long perhaps been practically, standing magistrates; and as they were now nominated by the consul just as formerly by the king, it followed that they abdicated office along with him after the expiry of a year. In other cases again, where his course was not expressly prescribed, the chief magistrate in the capital had either to act personally or not at all; for instance no delegation was admissible at the introductory steps of a process. This diversity in the treatment of civil and military delegation explains why, in the government of the Roman community proper, no delegated magisterial authority (pro magistratu) was possible nor were purely urban magistrates ever represented by non-magistrates, and why, on the other hand, military deputies (pro consule, pro prætore, pro quæstore) were excluded from all action within the community proper.

Nomination of successor. Again the right of nominating his successor, which the king had exercised absolutely, was by no means withdrawn from the new head of the community; but he was bound to nominate the person whom the community should designate to him. Through this binding right of proposal the nomination of the ordinary supreme magistrates passed in a certain sense substantially into the hands of the community; practically however there still existed a very considerable distinction between that right of proposal and the right of formal nomination. The consul in conducting the election was by no means a mere returning officer. By virtue of his prerogative essentially similar to the king's, he might reject particular candidates, and disregard votes tendered for them; at first, moreover, he might even limit the choice to a list of candidates proposed by himself; and (what was of still more consequence) the community by no means obtained through its right of proposal the right of deposing a magistrate again, which it must necessarily have obtained had it really appointed him. On the contrary, as the successor was still nominated solely by his predecessor, and thus no actual magistrate ever derived his right from a magistrate still holding office, the old and important principle of Roman state-law, that the supreme magistrate could never be deposed, remained inviolably in force in the consular period also.

Change in the nomination of priests. Lastly the nomination of the priests, which had been a prerogative of the kings (P. 67), was not transferred to the consuls; but the colleges of priests filled up the vacancies in their own ranks, while the Vestals and single priests were nominated by the college of pontifices, on which devolved also the exercise of the paternal jurisdiction, so to speak, of the community over the priestesses of Vesta. With a view to the performance of these acts, which could only be properly performed by a single individual, the college probably about this period first nominated a president, the Pontifex maximus. This separation of the supreme authority in things sacred from the civil power (while the already-mentioned rex sacrorum had neither the civil nor the sacred powers of the king, but simply the title, conferred upon him), and the semi-magisterial position of the new high priest prominently contrasting with the character which otherwise marked the priesthood in Rome, form one of the most significant and important peculiarities of a state revolution, the aim of which was to impose limits on the powers of the magistrates mainly in the interest of the aristocracy. With this circumstance was probably connected the fact that the opinions of the men of sacred lore as to auspices, prodigies, and the like occurrences, assumed more and more a character legally binding, so that, if the consul held an assembly of the people against the opinion of the augurs or consecrated a temple in opposition to that of the poritifices, such an act on his part was now regarded as not merely impious, but null and void.

We have already mentioned that the outward state of the consul was far inferior to that of the regal office hedged round with so much reverence and terror, that the regal name and the priestly consecration were withheld from him, and that the axe was taken away from his attendants. We have to add that, instead of the purple robe which the king had worn, the consul was distinguished from the ordinary burgess simply by the purple border of his toga, and that, while the king in all probability regularly appeared in public in his chariot, the consul was bound to accommodate himself to the general rule, and like every other burgess to go within the city on foot.

The dictator. These limitations, however, of the plenary power and of the insignia of the magistrate in reality applied only to the ordinary presidency of the community. In extraordinary cases, as we have already said, the two presidents chosen by the community were superseded by a single one, the master of the people (magister populi) or commander (dictator). In the election of dictator the community bore no part at all; his nomination proceeded solely from one of the consuls for the time being. There lay no appeal from his sentences any more than from those of the king, unless he chose to allow it. As soon as he was nominated, all the other magistrates became legally powerless and entirely subject to his authority. To him as to the king was assigned a "master of the horse;" and as the nomination of a dictator took place primarily and mainly on occasions when internal troubles or danger from war necessitated the calling out of the burgess-force, the nomination of a master of the horse formed as it were a constitutional accompaniment to that of dictator. The intention in all probability was that the dictator's authority should be distinguished from that of the king only by its limitation in point of time (the maximum duration of his office being six months), and by the circumstance that as an extraordinary magistrate he nominated no successor.

On the whole, therefore, the consuls continued to be, as the kings had been, the supreme administrators, judges, and generals; and even in a religious point of view it was not the rex sacrorum (who was only nominated that the name might be preserved), but the consul, who offered prayers and sacrifices for the community, and in its name ascertained the will of the gods with the aid of those skilled in sacred lore. Against cases of emergency a power was retained of reviving at any moment, without previous consultation of the community, the full and unlimited regal authority, so as to set aside the limitations imposed by the collegiate arrangement and by the special curtailments of jurisdiction. In this way the problem of legally retaining and practically restricting the regal authority was solved in genuine Roman fashion with equal acuteness and simplicity, by the nameless statesmen who worked out this revolution.

Centuries and curies. The community thus acquired by the change of constitution rights of the greatest importance: the right of annually designating its presidents, and that of deciding in the last instance regarding the life or death of the burgess. But the body which acquired these rights could not possibly be the community as it had been hitherto constituted—the patriciate which had practically become an order of nobility. The strength of the nation lay in the "multitude" (plebs), which already comprehended in large numbers people of note and of wealth. The exclusion of this multitude from the public assembly, although it bore part of the public burdens, might be tolerated as long as that public assembly itself did not materially interfere in the working of the state machine, and as long as the royal power by the very fact of its high and free position remained almost equally formidable to the burgesses and to the metœci, and secured equality of legal redress in the nation. But when the community itself was called regularly to elect and to decide, and the president was practically reduced from its master to its commissioner for a set term, this relation could no longer be maintained as it stood; least of all when the state had to be re-modelled on the morrow of a revolution, which could only have been carried out by the co-operation of the patricians and the metœci. An extension of that community was inevitable; and it was accomplished in the most comprehensive manner by admitting into the curies (and to that extent placing on an equal footing with the old burgesses) the collective plebeiate, that is, all the non-burgesses who were not slaves or citizens of extraneous communities living at Rome under the jus hospitii. But at the same time the comitia curiata, which hitherto had been legally and practically the first authority in the state, were almost totally deprived of their constitutional prerogatives. They were still allowed to give their sanction to acts purely formal, or transactions of a private character relating merely to individuals (such as the vow of allegiance to be made to the consul or the dictator when they entered on office just as previously to the king—P. 67—and the legal dispensations requisite for an arrogatio or a testament); but they were not to be allowed henceforward to perform any act of a properly political character. All the political prerogatives of the public assembly—as well the decision on appeals in criminal causes (which indeed were essentially political processes), as the nomination of magistrates and the adoption or rejection of laws—were transferred to, or were first acquired by, the assembled levy of those bound to military service; so that the centuries now received the rights, as they had previously borne the burdens, of citizens. By this step the small beginnings of the Servian constitution (as, in particular, the handing over to the army the right of assenting to the declaration of an aggressive war, P. 101) attained such a development that the curies were completely and for ever cast into the shade by the assembly of the centuries, and people became accustomed to regard the latter as the sovereign people. There was no debate in that assembly any more than in that of the curies, except when the presiding magistrate chose himself to speak or bade others do so; of course in cases of appeal both parties had to be heard. A simple majority of the centuries was decisive.

This plan was evidently chosen, because in the comitia curiata those who were entitled to vote at all were on a footing of entire equality, and therefore after the admission of all the plebeians into the curies the result would have been a complete democracy, if the decision of political questions had remained with that assembly; whereas the comitia centuriata placed the preponderating influence, not in the hands of the nobles, but in those of the propertied classes, and, besides, the gentes retained there the important privilege, that their six equestrian centuries voted always first and by that means often practically decided the election.

Convention of the patricians. Still more important was a second right conceded to the old burgesses. Every decree adopted by the centuries, whether it contained a proposal of election or concerned any other matter, was submitted for confirmation or rejection to the convention of the patricians—now no longer legally identical with the burgesses.^[4] It was only in cases of appeal and perhaps of declaration of war that the centuries gave a final decision. According to the earlier law the curies had only co-operated in the exercise of penal jurisdiction when it was the king's pleasure to permit the privilege of appeal (P. 83), and it is probable that they were never consulted regarding the declaring of war (P. 83); both privileges might therefore be devolved upon the centuries, without legally abridging the prerogatives of the old burgesses. The same argument might certainly have been applied in reference to proposals of nomination to the consulship, but the nobility was powerful enough to secure for itself the right of rejecting these.

The direct reform of the constitution proceeded apparently no further. The position of the senate, in particular, underwent legally no change; it continued to be an assembly of men of note uniformly remaining in it for life, without any proper official jurisdiction, who were advisers to the annual king now as formerly they had been to the king for life. The right of electing to the senate was exercised by the consuls just as formerly by the kings; even the custom of revising and filling up the lists of senators at every census, and as a rule therefore every fourth year, perhaps reached back to the regal period. The consul was not considered as a member of the senate any more than the king, and therefore in taking the votes did not include his own. No qualification for admission to the senate had ever existed, and therefore no legal innovation was involved in the admission of metœci (P. 71, 100); nevertheless it was an important practical change when, instead of non-patricians being received into the senate only singly perhaps and exceptionally (as was the case in the regal period), the blanks in the senate were now filled up so extensively from the ranks of the plebeians, .that—if tradition does not misinform us—of the 300 senators less than the half were full-burgesses (patres), while 164 were "added to the roll" (conscripti), and thus even in official style the senators were henceforth addressed as "full-burgesses and enrolled" (patres et conscripti).

Conservative character of the revolution. Generally in the Roman commonwealth, even after the conversion of the monarchy into a republic, the old was as far as possible retained. So far as a revolution in a state can be conservative at all, this one was so; not one of the constituent elements of the commonwealth was really overthrown by it. This circumstance indicates the character of the whole movement. The expulsion of the Tarquins was not, as the sorry and deeply falsified accounts of it represent, the work of a people carried away by sympathy and enthusiasm for liberty, but the work of two great political parties already engaged in conflict and clearly aware that that conflict would steadily continue—the old burgesses and the metœci—who, like the English Whigs and Tories in 1688, were for a moment united by the common danger, which threatened to convert the commonwealth into the arbitrary government of a despot, and differed again as soon as the danger was over. The old burgesses could not get rid of the monarchy without the co-operation of the new burgesses; but the new burgesses were far from being sufficiently strong to wrest the power out of the hands of the former at one blow. Compromises of this sort are necessarily limited to the smallest measure of mutual concessions obtained by tedious haggling, and they leave the future to decide which of the constituent elements shall eventually preponderate, and whether they will work harmoniously together or maintain their antagonism. To look therefore simply to the direct innovations introduced, such as the mere change in the duration of the supreme magistracy, is altogether to mistake the broad import of the first Roman revolution: its indirect effects were by far the most important, and of greater potency perhaps than even its authors anticipated.

The new community. It was at this period, in short, that the Roman burgess-body in the later sense of the term originated. The plebeians had hitherto been metœci, who were subjected to their share of taxes and burdens, but who were nevertheless in the eye of the law really nothing but tolerated aliens, between whose position and that of foreigners proper it may have seemed hardly necessary to draw a definite line of distinction. They were now enrolled as burgesses in the register of the curies, and, although they were still far from being on a footing of legal equality—although the old burgesses still remained solely eligible to the burgess magistracies and priesthoods, and exclusively entitled to participate in the burgess usufructs, such as the joint use of the public pastures—yet the first and most difficult step towards complete equalization was gained from the time when the plebeians no longer served merely in the common levy, but also voted in the common assembly and in the common council, and the head and back of the poorest metoikos were as well protected by the right of appeal as those of the noblest of the old burgesses.

One consequence of this amalgamation of the patricians and plebeians in a new corporation of Roman burgesses was the conversion of the old burgesses into a gentile nobility, which bore from the first the stamp of an exclusive and wrongly privileged aristocracy impressed upon it by its exclusion of the plebeians from all public magistracies and public priesthoods (while yet they were admissible to the position of officers and senators), and by its maintenance, with perverse obstinacy, of the legal impossibility of marriage between old burgesses and plebeians.

A second consequence of the new union of the burgesses have been a more definite regulation of the right of settlement, with reference both to the Latin confederates and to other states. It became necessary—not so much on account of the right of suffrage in the centuries (which indeed belonged only to the freeholder) as on account of the right of appeal, which was intended to be conceded to the plebeian, but not to the sojourner or the foreigner—to express more precisely the conditions of the acquisition of plebeian rights, and on the other hand to discriminate the now enlarged burgess-body from those who were non-burgesses. To this epoch therefore we may trace back, in the views and feelings of the people,both the invidiousness of the distinction between patricians and plebeians, and the strict and haughty line of demarcation between cives Romani and aliens; but the former civic demarcation was in its nature transient, while the latter political one was permanent, and the sense of political unity and rising greatness, which was thus implanted in the heart of the nation, was expansive enough first to undermine and then to carry away with its mighty current those paltry distinctions.

Law and edict. It was at this period moreover that law and edict were separated. The distinction indeed had its foundation in the essential character of the Roman state; for even the regal power in Rome was subordinate, not superior, to the law of the land. But the profound and practical veneration, which the Romans like every other people of political capacity cherished for the principle of authority, gave birth to the remarkable rule of Roman constitutional and private law, that every command of the magistrate not based upon a law was at least valid during his tenure of office, although it expired with that tenure. It is evident that in this view, so long as the presidents were nominated for life, the distinction between law and edict must have practically been almost lost sight of, and the legislative action of the public assembly could acquire no development. On the other hand it obtained a wide field of action after the presidents were changed annually; and the fact was now by no means void of practical importance, that, if the consul in deciding a process committed a legal informality, his successor could institute a fresh trial of the cause.

Civil and military authority. It was at this period, finally, that the provinces of civil and military authority were separated. In the former the law ruled, in the latter the axe: the former was governed by the constitutional checks of the right of appeal and of prescribed delegation; in the latter the general held an absolute sway like the king.^[5] It was an established principle, than the general and the army as such should not under ordinary circumstances enter the city proper. That organic and permanently operative enactments could only be made under the superintendence of the civil power, was implied in the spirit if not in the letter of the constitution. Instances indeed occasionally occurred where a magistrate, disregarding this principle, convoked his force in the camp as a burgess-assembly, nor was a decree passed under such circumstances legally void; but custom disapproved of such a proceeding, and it soon fell into disuse as though it had been forbidden. The distinction between Quirites and soldiers became gradually formed and was ever gaining strength in the minds of the burgesses.

Government of the patriciate. Time however was required for the development of these consequences of the new republicanism; vividly as posterity felt its effects, the revolution probably appeared to the contemporary world in a different light. The non-burgess indeed gained by it burgess-rights, and the new burgess-body acquired in the comitia centuriata comprehensive prerogatives; but the right of rejection on the part of the patrician convention, which in firm and serried ranks stood confronting the comitia like an Upper House, legally neutralized their free action, and although not in a position to thwart the serious will of the collective body, could yet practically interpose annoyance and delay. The nobles probably expected by means of their convention to rule in the new organization of the state, based on two assemblies, quite as securely as they had ruled before when they were the sole representatives of the community: and while in this way they did not seem to have lost much, they had in other respects decidedly gained. The king, it is true, was a patrician as well as the consul; but while his exceptional position raised the former no less above the patricians than above the plebeians, and while might easily occur in which he would be obliged to lean upon the support of the multitude even against the nobility, the consul on the other hand—ruling for a brief term, but before and after that term simply one of the nobility, and obeying to-morrow the noble fellow-burgess whom he had commanded to-day—by no means occupied a position aloof from his order, and the spirit of the noble in him must have been far more powerful than that of the magistrate. Indeed, if at any time by way of exception a patrician disinclined to the rule of the nobility was called to the government, his official authority was paralyzed, partly by the priestly colleges which were pervaded by an intense aristocratic spirit, partly by his colleagues, and was easily suspended by means of a dictatorship; and, what was of still more moment, he wanted the first element of political power, time. The president of a commonwealth, whatever plenary authority may be conceded to him, will never gain possession of political power if he does not continue for some considerable time at the head of affairs; for a necessary condition of every dominion is duration. Consequently the influence of the senate appointed for life, which even during the regal period must not be estimated as insignificant, inevitably under mere annual rulers acquired such an importance that their constitutional relations became precisely inverted; the senate substantially assumed to itself the powers of government, and the former ruler sank into a president acting as its chairman and executing its decrees. In the case of every proposal to be submitted to the community for acceptance or rejection, the practice of previously consulting the senate and obtaining its approval, while not constitutionally necessary, was consecrated by use and wont; and it was not lightly deviated from. The same course was followed in the case of important state-treaties, of the management and distribution of the public lands, and generally of every act, the effects of which extended beyond the official vear; and nothing was left to the consul but the transaction of current business, the initial steps in civil processes, and the command in war. Especially important in its consequences was the innovation, by which neither the consul, nor even the otherwise absolute dictator, was permitted to touch the public treasure except with the consent and by the will of the senate. The senate made it obligatory on the consuls to commit the administration of the public chest, which the king had managed or had it at any rate in his power to manage himself, to two standing subordinate magistrates, who were nominated by the consuls and had to obey them, but were, as may easily be conceived, much more dependent than the consuls themselves on the senate (P. 260). It thus drew into its own hands the management of finance; and this right of sanctioning the expenditure of the finances on the part of the Roman senate may be placed on a parallel in its effects with the right of sanctioning taxation in the constitutional monarchies of the present day. From the change in the relative positions of the magistrate and his council, the free admission and expulsion of senators must have also become practically restricted- The practice of holding the senatorial stalls for life, and perhaps even a sort of title to them in virtue of birth and of the occupation of certain offices, had already long possessed the sanction of custom; now such claims were necessarily put in a more definite shape, and custom acquired more and more the force of law.

The consequences followed as a matter of course. The first and most essential condition of all aristocratic government is, that the plenary power of the state be vested not in an individual but in a corporation. Now an essentially aristocratic corporation, the senate, had appropriated to itself the government, and at the same time the executive power not only remained in the hands of the nobility, but was also entirely subject to the governing corporation. It is true that a considerable number of men not belonging to the nobility sat in the senate; but as they were incapable of holding magistracies, and thus were excluded from all practical share in the government, they necessarily played a subordinate part in the senate also, and were moreover kept in pecuniary dependence on the corporation through the economically important privilege of using the public pasture. The formally absolute right of the patrician consuls to revise and modify the senatorial list at least every fourth year, however little may have been its effect in reference to the nobility, might very well be employed in their interest, and an obnoxious plebeian might by means of it be kept out of the senate or even be removed from its ranks. It is therefore quite true that the immediate effect of the revolution was to establish the aristocratic government.

The plebeian opposition. It is not however the whole truth. While the majority of contemporaries probably thought that the revolution had brought upon the plebeians only a more inflexible despotism, we who come afterwards discern in that very revolution the germs of young liberty. What the patricians gained was gained at the expense not of the community, but of the magistrates' power. It is true the community gained only a few narrowly restricted rights, which were far less practical and palpable than the acquisitions of the nobility, and which not one in a thousand probably had the wisdom to value; but they formed a pledge and earnest of the future. Hitherto the metœci had been politically nothing, the old burgesses had been everything; now that the former were embraced in the community, the old burgesses were overcome; for much as might be wanting to full civil equality, it is the first breach, not the occupation of the last post, that decides the fall of the fortress. With justice therefore the Roman community dated its political existence from the beginning of the consulship.

While however the republican revolution may, notwithstanding the aristocratic rule which in the first instance it established, be justly called a victory of the former metœci or the plebs, the revolution even in this respect bore by no means the character which we are accustomed in the present day to designate as democratic. In the senate indeed there now sat more plebeians than before; yet pure personal merit without the support of birth and wealth could perhaps gain admittance to the senate more easily under the regal government than under that of the patriciate. The nature of the case implied that the governing aristocratic order, so far as it admitted plebeians at all, would grant the right of occupying seats in the senate not absolutely to the ablest men, but chiefly on the contrary to the heads of the wealthy and notable plebeian families; and the families thus admitted jealously guarded the possession of their senatorial stalls. While a complete legal equality therefore had subsisted within the old burgess-body, the new burgess-body or former metœci came to be in this way divided from the first into a number of privileged families and a multitude kept in a position of inferiority. But the power of the community now according to the centurial organization came into the hand of that class, which since the Servian reform of the army and of taxation had borne mainly the burdens of the state, namely the freeholders, and therefore in the main neither into the hands of the great proprietors nor into those of the small cottagers, but into those of the intermediate class of farmers—an arrangement in which the seniors were still so far privileged that, although less numerous, they had as many voting-divisions as the juniors. While in this way the axe was laid to the root of the old burgess-body and their clan-nobility, and the basis of a new burgess-body was laid, the preponderance in the latter rested on the possession of land and on age, and the first beginnings were already visible of a new aristocracy based primarily on the actual consideration in which the families were held—the future nobility. There could be no clearer indication of the fundamentally conservative character of the Roman commonwealth than the tact, that the revolution which gave birth to the republic laid down at the same time the primary outlines of a new organization of the state, which was in like manner conservative and in like manner aristocratic.

 

1. The well-known fable for the most part refutes itself. To a considerable extent, it has been concocted for the explanation of surnames (Brutus, Poplicola, Scævola). But even its apparently historical ingredients are found, on closer examination, to have been invented. Of this character is the statement that Brutus was a captain of horse (tribunus celerum) and in that capacity proposed the decree of the people as to the banishment of the Tarquins: for, according to the earliest constitution of Rome, it is quite impossible that a mere tribune should have had the right to convoke the curies, when that right was not accorded to the Alter ego of the king (P. 82). The whole of this statement has evidently been invented with the view of furnishing a basis of legitimacy for the Roman republic; and the invention is a very miserable one, for the tribunus celerum is confounded with the entirely different magister equitum (P. 79), and then the right of convoking the centuries which pertained to the latter by virtue of his prætorian rank is made to apply to this assembly of the curies.
2. Consoles are those who "leap or dance together," as præsul is one who "leaps before," exul, one who "leaps out" (ὁ ἐκπεσών), insula, a "leap into", primarily applied to a mass of rock fallen into the sea.
3. The day of entering on office did not coincide with the beginning of the year (1st March), and was not at all fixed. The day of retiring was regulated by it, except when a consul was elected expressly in room of one who had died or abdicated (consul suffectus); in which case the substitute succeeded to the rights and consequently to the term of him whom he replaced. But these supplementary consuls in the earlier period only occur when one of the consuls had died or abdicated: pairs of supplementary consuls are not found until the later ages of the republic. Ordinarily, therefore, the official year of a consul consisted of unequal portions of two civil years.
4. Patres auctores fiunt. That this confirmation did not proceed from the curies, nor from any comitia strictly so called at all, but from a convention of the patricians—such as appointed the first interrex—is apparent on a careful comparison of all the extant accounts of the matter. This convention probably could not issue any decrees of its own on other matters; at least there seems no longer to have existed any legal form of conferring the patriciate after the introduction of the republic—a circumstance which admits of explanation only on that hypothesis.
5. It may not be superfluous to remark, that the judicium legitimun, as well as that quod imperio continetur, rested on the imperium of the directing magistrate, and the distinction only consisted in the circumstance that the imperium was in the former case limited by the lex, while in the latter it was free.