The History of Rome, Book I

As the house-master was not simply the greatest but the only power in the house, so the king was not merely the first but the only holder of power in the state. He might indeed form colleges of men of skill composed of those specially conversant with the rules of sacred or of public law, and call upon them for their advice; he might, to facilitate his exercise of power, entrust to others particular functions, such as the making communications to the burgesses, the command in war, the decision of processes of minor importance, the inquisition of crimes; he might in particular, if he was compelled to quit the bounds of the city, leave behind him a "city-warden" (-praefectus urbi-) with the full powers of an -alter ego-; but all official power existing by the side of the king's was derived from the latter, and every official held his office by the king's appointment and during the king's pleasure. All the officials of the earliest period, the extraordinary city-warden as well as the "leaders of division" (-tribuni-, from -tribus-, part) of the infantry (-milites-) and of the cavalry (-celeres-) were merely commissioned by the king, and not magistrates in the subsequent sense of the term. The regal power had not and could not have any external check imposed upon it by law: the master of the community had no judge of his acts within the community, any more than the housefather had a judge within his household. Death alone terminated his power. The choice of the new king lay with the council of elders, to which in case of a vacancy the interim-kingship (-interregnum-) passed. A formal cooperation in the election of king pertained to the burgesses only after his nomination; -de jure- the kingly office was based on the permanent college of the Fathers (-patres-), which by means of the interim holder of the power installed the new king for life. Thus "the august blessing of the gods, under which renowned Rome was founded," was transmitted from its first regal recipient in constant succession to those that followed him, and the unity of the state was preserved unchanged notwithstanding the personal change of the holders of power.

This unity of the Roman people, represented in the field of religion by the Roman Diovis, was in the field of law represented by the prince, and therefore his costume was the same as that of the supreme god; the chariot even in the city, where every one else went on foot, the ivory sceptre with the eagle, the vermilion-painted face, the chaplet of oaken leaves in gold, belonged alike to the Roman god and to the Roman king. It would be a great error, however, to regard the Roman constitution on that account as a theocracy: among the Italians the ideas of god and king never faded away into each other, as they did in Egypt and the East. The king was not the god of the people; it were much more correct to designate him as the proprietor of the state. Accordingly the Romans knew nothing of special divine grace granted to a particular family, or of any other sort of mystical charm by which a king should be made of different stuff from other men: noble descent and relationship with earlier rulers were recommendations, but were not necessary conditions; the office might be lawfully filled by any Roman come to years of discretion and sound in body and mind.30 The king was thus simply an ordinary burgess, whom merit or fortune, and the primary necessity of having one as master in every house, had placed as master over his equals—a husbandman set over husbandmen, a warrior set over warriors. As the son absolutely obeyed his father and yet did not esteem himself inferior, so the burgess submitted to his ruler without precisely accounting him his better. This constituted the moral and practical limitation of the regal power. The king might, it is true, do much that was inconsistent with equity without exactly breaking the law of the land: he might diminish his fellow-combatants' share of the spoil; he might impose exorbitant task-works or otherwise by his imposts unreasonably encroach upon the property of the burgess; but if he did so, he forgot that his plenary power came not from God, but under God's consent from the people, whose representative he was; and who was there to protect him, if the people should in return forget the oath of allegiance which they had sworn? The legal limitation, again, of the king's power lay in the principle that he was entitled only to execute the law, not to alterit. Every deviation from the law had to receive the previous approval of the assembly of the people and the council of elders; if it was not so approved, it was a null and tyrannical act carrying no legal effect. Thus the power of the king in Rome was, both morally and legally, at bottom altogether different from the sovereignty of the present day; and there is no counterpart at all in modern life either to the Roman household or to the Roman state.

The Community

The division of the body of burgesses was based on the "wardship," -curia- (probably related to -curare- = -coerare-, —koiranos—); ten wardships formed the community; every wardship furnished a hundred men to the infantry (hence -mil-es-, like -equ-es-, the thousand-walker), ten horsemen and ten councillors. When communities combined, each of course appeared as a part (-tribus-) of the whole community (-tota-in Umbrian and Oscan), and the original unit became multiplied by the number of such parts. This division had reference primarily to the personal composition of the burgess-body, but it was applied also to the domain so far as the latter was apportioned at all. That the curies had their lands as well as the tribes, admits of the less doubt, since among the few names of the Roman curies that have been handed down to us we find along with some apparently derived from -gentes-, e. g. -Faucia-, others certainly of local origin, e. g. -Veliensis-; each one of them embraced, in this primitive period of joint possession of land, a number of clan-lands, of which we have already spoken.31

We find this constitution under its simplest form32 in the scheme of the Latin or burgess communities that subsequently sprang up under the influence of Rome; these had uniformly the number of a hundred councillors (-centumviri-). But the same normal numbers make their appearance throughout in the earliest tradition regarding the tripartite Rome, which assigns to it thirty curies, three hundred horsemen, three hundred senators, three thousand foot-soldiers.

Nothing is more certain than that this earliest constitutional scheme did not originate in Rome; it was a primitive institution common to all the Latins, and perhaps reached back to a period anterior to the separation of the stocks. The Roman constitutional tradition quite deserving of credit in such matters, while it accounts historically for the other divisions of the burgesses, makes the division into curies alone originate with the origin of the city; and in entire harmony with that view not only does the curial constitution present itself in Rome, but in the recently discovered scheme of the organization of the Latin communities it appears as an essential part of the Latin municipal system.

The essence of this scheme was, and remained, the distribution into curies. The tribes ("parts") cannot have been an element of essential importance for the simple reason that their occurrence at all was, not less than their number, the result of accident; where there were tribes, they certainly had no other significance than that of preserving the remembrance of an epoch when such "parts" had themselves been wholes.33 There is no tradition that the individual tribes had special presiding magistrates or special assemblies of their own; and it is highly probable that in the interest of the unity of the commonwealth the tribes which had joined together to form it were never in reality allowed to have such institutions. Even in the army, it is true, the infantry had as many pairs of leaders as there were tribes; but each of these pairs of military tribunes did not command the contingent of a tribe; on the contrary each individual war-tribune, as well as all in conjunction, exercised command over the whole infantry. The clans were distributed among the several curies; their limits and those of the household were furnished by nature. That the legislative power interfered in these groups by way of modification, that it subdivided the large clan and counted it as two, or joined several weak ones together, there is no indication at all in Roman tradition; at any rate this took place only in a way so limited that the fundamental character of affinity belonging to the clan was not thereby altered. We may not therefore conceive the number of the clans, and still less that of the households, as a legally fixed one; if the -curia- had to furnish a hundred men on foot and ten horsemen, it is not affirmed by tradition, nor is it credible, that one horseman was taken from each clan and one foot-soldier from each house. The only member that discharged functions in the oldest constitutional organization was the -curia-. Of these there were ten, or, where there were several tribes, ten to each tribe. Such a "wardship" was a real corporate unity, the members of which assembled at least for holding common festivals. Each wardship was under the charge of a special warden (-curio-), and had a priest of its own (-flamen curialis-); beyond doubt also levies and valuations took place according to curies, and in judicial matters the burgesses met by curies and voted by curies. This organization, however, cannot have been introduced primarily with a view to voting, for in that case they would certainly have made the number of subdivisions uneven.

Equality of the Burgesses

Sternly defined as was the contrast between burgess and non-burgess, the equality of rights within the burgess-body was complete. No people has ever perhaps equalled that of Rome in the inexorable rigour with which it has carried out these principles, the one as fully as the other. The strictness of the Roman distinction between burgesses and non-burgesses is nowhere perhaps brought out with such clearness as in the treatment of the primitive institution of honorary citizenship, which was originally designed to mediate between the two. When a stranger was, by resolution of the community, adopted into the circle of the burgesses, he might surrender his previous citizenship, in which case he passed over wholly into the new community; but he might also combine his former citizenship with that which had just been granted to him. Such was the primitive custom, and such it always remained in Hellas, where in later ages the same person not unfrequently held the freedom of several communities at the same time. But the greater vividness with which the conception of the community as such was realized in Latium could not tolerate the idea that a man might simultaneously belong in the character of a burgess to two communities; and accordingly, when the newly-chosen burgess did not intend to surrender his previous franchise, it attached to the nominal honorary citizenship no further meaning than that of an obligation to befriend and protect the guest (-jus hospitii-), such as had always been recognized as incumbent in reference to foreigners. But this rigorous retention of barriers against those that were without was accompanied by an absolute banishment of all difference of rights among the members included in the burgess community of Rome. We have already mentioned that the distinctions existing in the household, which of course could not be set aside, were at least ignored in the community; the son who as such was subject in property to his father might thus, in the character of a burgess, come to have command over his father as master. There were no class-privileges: the fact that the Tities took precedence of the Ramnes, and both ranked before the Luceres, did not affect their equality in all legal rights. The burgess cavalry, which at this period was used for single combat in front of the line on horseback or even on foot, and was rather a select or reserve corps than a special arm of the service, and which accordingly contained by far the wealthiest, best-armed, and best-trained men, was naturally held in higher estimation than the burgess infantry; but this was a distinction purely -de facto-, and admittance to the cavalry was doubtless conceded to any patrician. It was simply and solely the constitutional subdivision of the burgess-body that gave rise to distinctions recognized by the law; otherwise the legal equality of all the members of the community was carried out even in their external appearance. Dress indeed served to distinguish the president of the community from its members, the grown-up man under obligation of military service from the boy not yet capable of enrolment; but otherwise the rich and the noble as well as the poor and low-born were only allowed to appear in public in the like simple wrapper (-toga-) of white woollen stuff. This complete equality of rights among the burgesses had beyond doubt its original basis in the Indo-Germanic type of constitution; but in the precision with which it was thus apprehended and embodied it formed one of the most characteristic and influential peculiarities of the Latin nation. And in connection with this we may recall the fact that in Italy we do not meet with any race of earlier settlers less capable of culture, that had become subject to the Latin immigrants.34 They had no conquered race to deal with, and therefore no such condition of things as that which gave rise to the Indian system of caste, to the nobility of Thessaly and Sparta and perhaps of Hellas generally, and probably also to the Germanic distinction of ranks.

Burdens of the Burgesses

The maintenance of the state economy devolved, of course, upon the burgesses. The most important function of the burgess was his service in the army; for the burgesses had the right and duty of bearing arms. The burgesses were at the same time the "body of warriors" (-populus-, related to -populari-, to lay waste): in the old litanies it is upon the "spear-armed body of warriors" (-pilumnus poplus-) that the blessing of Mars is invoked; and even the designation with which the king addresses them, that of Quirites,35 is taken as signifying "warrior." We have already stated how the army of aggression, the "gathering" (-legio-), was formed. In the tripartite Roman community it consisted of three "hundreds" (-centuriae-) of horsemen (-celeres-, "the swift," or -flexuntes-, "the wheelers") under the three leaders-of-division of the horsemen (-tribuni celerum-)36 and three "thousands" of footmen (-milties-) under the three leaders-of-division of the infantry (-tribuni militum-), the latter were probably from the first the flower of the general levy. To these there may perhaps have been added a number of light-armed men, archers especially, fighting outside of the ranks.37 The general was regularly the king himself. Besides service in war, other personal burdens might devolve upon the burgesses; such as the obligation of undertaking the king's commissions in peace and in war,38 and the task-work of tilling the king's lands or of constructing public buildings. How heavily in particular the burden of building the walls of the city pressed upon the community, is evidenced by the fact that the ring-walls retained the name of "tasks" (-moenia-). There was no regular direct taxation, nor was there any direct regular expenditure on the part of the state. Taxation was not needed for defraying the burdens of the community, since the state gave no recompense for serving in the army, for task-work, or for public service generally; so far as there was any such recompense at all, it was given to the person who performed the service either by the district primarily concerned in it, or by the person who could not or would not himself serve. The victims needed for the public service of the gods were procured by a tax on actions at law; the defeated party in an ordinary process paid down to the state a cattle-fine (-sacramentum-) proportioned to the value of the object in dispute. There is no mention of any regular presents to the king on the part of the burgesses. On the other hand there flowed into the royal coffers the port-duties,39 as well as the income from the domains—in particular, the pasture tribute (-scriptura-) from the cattle driven out upon the common pasture, and the quotas of produce (-vectigalia-) which those enjoying the use of the lands of the state had to pay instead of rent. To this was added the produce of cattle-fines and confiscations and the gains of war. In cases of need a contribution (-tributum-) was imposed, which was looked upon, however, as a forced loan and was repaid when the times improved; whether it fell upon the burgesses generally, or only upon the —metoeci—, cannot be determined; the latter supposition is, however, the more probable.

The king managed the finances. The property of the state, however, was not identified with the private property of the king; which, judging from the statements regarding the extensive landed possessions of the last Roman royal house, the Tarquins, must have been considerable. The ground won by arms, in particular, appears to have been constantly regarded as property of the state. Whether and how far the king was restricted by use and wont in the administration of the public property, can no longer be ascertained; only the subsequent course of things shows that the burgesses can never have been consulted regarding it, whereas it was probably the custom to consult the senate in the imposition of the -tributum- and in the distribution of the lands won in war.

Rights of the Burgesses

The Roman burgesses, however, do not merely come into view as furnishing contributions and rendering service; they also bore a part in the public government. For this purpose all the members of the community (with the exception of the women, and the children still incapable of bearing arms)—in other words, the "spearmen" (-quirites-) as in addressing them they were designated—assembled at the seat of justice, when the king convoked them for the purpose of making a communication (-conventio-, -contio-) or formally bade them meet (-comitia-) for the third week (-in trinum noundinum-), to consult them by curies. He appointed such formal assemblies of the community to be held regularly twice a year, on the 24th of March and the 24th of May, and as often besides as seemed to him necessary. The burgesses, however, were always summoned not to speak, but to hear; not to ask questions, but to answer. No one spoke in the assembly but the king, or he to whom the king saw fit to grant liberty of speech; and the speaking of the burgesses consisted of a simple answer to the question of the king, without discussion, without reasons, without conditions, without breaking up the question even into parts. Nevertheless the Roman burgess-community, like the Germanic and not improbably the primitive Indo-Germanic communities in general, was the real and ultimate basis of the political idea of sovereignty. But in the ordinary course of things this sovereignty was dormant, or only had its expression in the fact that the burgess-body voluntarily bound itself to render allegiance to its president. For that purpose the king, after he had entered on his office, addressed to the assembled curies the question whether they would be true and loyal to him and would according to use and wont acknowledge himself as well as his messengers (-lictores-); a question, which undoubtedly might no more be answered in the negative than the parallel homage in the case of a hereditary monarchy might be refused.

It was in thorough consistency with constitutional principles that the burgesses, just as being the sovereign power, should not on ordinary occasions take part in the course of public business. So long as public action was confined to the carrying into execution of the existing legal arrangements, the power which was, properly speaking, sovereign in the state could not and might not interfere: the laws governed, not the lawgiver. But it was different where a change of the existing legal arrangements or even a mere deviation from them in a particular case was necessary; and here accordingly, under the Roman constitution, the burgesses emerge without exception as actors; so that each act of the sovereign authority is accomplished by the co-operation of the burgesses and the king or -interrex-. As the legal relation between ruler and ruled was itself sanctioned after the manner of a contract by oral question and answer, so every sovereign act of the community was accomplished by means of a question (-rogatio-), which the king addressed to the burgesses, and to which the majority of the curies gave an affirmative answer. In this case their consent might undoubtedly be refused. Among the Romans, therefore, law was not primarily, as we conceive it, a command addressed by the sovereign to the whole members of the community, but primarily a contract concluded between the constitutive powers of the state by address and counter-address.40 Such a legislative contract was -de jure- requisite in all cases which involved a deviation from the ordinary consistency of the legal system. In the ordinary course of law any one might without restriction give away his property to whom he would, but only upon condition of its immediate transfer: that the property should continue for the time being with the owner, and at his death pass over to another, was a legal impossibility—unless the community should allow it; a permission which in this case the burgesses could grant not only when assembled in their curies, but also when drawn up for battle. This was the origin of testaments. In the ordinary course of law the freeman could not lose or surrender the inalienable blessing of freedom, and therefore one who was subject to no housemaster could not subject himself to another in the place of a son—unless the community should grant him leave to do so. This was the -abrogatio-. In the ordinary course of law burgess-rights could only be acquired by birth and could never be lost—unless the community should confer the patriciate or allow its surrender; neither of which acts, doubtless, could be validly done originally without a decree of the curies. In the ordinary course of law the criminal whose crime deserved death, when once the king or his deputy had pronounced sentence according to judgment and justice, was inexorably executed; for the king could only judge, not pardon—unless the condemned burgess appealed to the mercy of the community and the judge allowed him the opportunity of pleading for pardon. This was the beginning of the -provocatio-, which for that reason was especially permitted not to the transgressor who had refused to plead guilty and had been convicted, but to him who confessed his crime and urged reasons in palliation of it. In the ordinary course of law the perpetual treaty concluded with a neighbouring state might not be broken—unless the burgesses deemed themselves released from it on account of injuries inflicted on them. Hence it was necessary that they should be consulted when an aggressive war was contemplated, but not on occasion of a defensive war, where the other state had broken the treaty, nor on the conclusion of peace; it appears, however, that the question was in such a case addressed not to the usual assembly of the burgesses, but to the army. Thus, in general, it was necessary to consult the burgesses whenever the king meditated any innovation, any change of the existing public law; and in so far the right of legislation was from antiquity not a right of the king, but a right of the king and the community. In these and all similar cases the king could not act with legal effect without the cooperation of the community; the man whom the king alone declared a patrician remained as before a non-burgess, and the invalid act could only carry consequences possibly -de facto-, not -de jure-. Thus far the assembly of the community, however restricted and bound at its emergence, was yet from antiquity a constituent element of the Roman commonwealth, and was in law superior to, rather than co-ordinate with, the king.

The Senate

But by the side of the king and of the burgess-assembly there appears in the earliest constitution of the community a third original power, not destined for acting like the former or for resolving like the latter, and yet co-ordinate with both and within its own rightful sphere placed over both. This was the council of elders or -senatus-. Beyond doubt it had its origin in the clan-constitution: the old tradition that in the original Rome the senate was composed of all the heads of households is correct in state-law to this extent, that each of the clans of the later Rome which had not merely migrated thither at a more recent date referred its origin to one of those household-fathers of the primitive city as its ancestor and patriarch. If, as is probable, there was once in Rome or at any rate in Latium a time when, like the state itself, each of its ultimate constituents, that is to say each clan, had virtually a monarchical organization and was under the rule of an elder—whether raised to that position by the choice of the clansmen or of his predecessor, or in virtue of hereditary succession—the senate of that time was nothing but the collective body of these clan-elders, and accordingly an institution independent of the king and of the burgess-assembly; in contradistinction to the latter, which was directly composed of the whole body of the burgesses, it was in some measure a representative assembly of persons acting for the people. Certainly that stage of independence when each clan was virtually a state was surmounted in the Latin stock at an immemorially early period, and the first and perhaps most difficult step towards developing the community out of the clan-organization—the setting aside of the clan-elders—had possibly been taken in Latium long before the foundation of Rome; the Roman clan, as we know it, is without any visible head, and no one of the living clansmen is especially called to represent the common patriarch from whom all the clansmen descend or profess to descend so that even inheritance and guardianship, when they fall by death to the clan, devolve on the clan-members as a whole. Nevertheless the original character of the council of elders bequeathed many and important legal consequences to the Roman senate. To express the matter briefly, the position of the senate as something other and more than a mere state-council—than an assemblage of a number of trusty men whose advice the king found it fitting to obtain—hinged entirely on the fact that it was once an assembly, like that described by Homer, of the princes and rulers of the people sitting for deliberation in a circle round the king. So long as the senate was formed by the aggregate of the heads of clans, the number of the members cannot have been a fixed one, since that of the clans was not so; but in the earliest, perhaps even in pre-Roman, times the number of the members of the council of elders for the community had been fixed without respect to the number of the then existing clans at a hundred, so that the amalgamation of the three primitive communities had in state-law the necessary consequence of an increase of the seats in the senate to what was thenceforth the fixed normal number of three hundred. Moreover the senators were at all times called to sit for life; and if at a later period the lifelong tenure subsisted more -de facto- than -de jure-, and the revisions of the senatorial list that took place from time to time afforded an opportunity to remove the unworthy or the unacceptable senator, it can be shown that this arrangement only arose in the course of time. The selection of the senators certainly, after there were no longer heads of clans, lay with the king; but in this selection during the earlier epoch, so long as the people retained a vivid sense of the individuality of the clans, it was probably the rule that, when a senator died, the king should call another experienced and aged man of the same clanship to fill his place. It was only, we may surmise, when the community became more thoroughly amalgamated and inwardly united, that this usage was departed from and the selection of the senators was left entirely to the free judgment of the king, so that he was only regarded as failing in his duty when he omitted to fill up vacancies.