The History of Rome, Book I

Prerogatives of the Senate. The -Interregnum-

The prerogatives of this council of elders were based on the view that the rule over the community composed of clans rightfully belonged to the collective clan-elders, although in accordance with the monarchical principle of the Romans, which already found so stern an expression in the household, that rule could only be exercised for the time being by one of these elders, namely the king. Every member of the senate accordingly was as such, not in practice but in prerogative, likewise king of the community; and therefore his insignia, though inferior to those of the king, were of a similar character: he wore the red shoe like the king; only that of the king was higher and more handsome than that of the senator. On this ground, moreover, as was already mentioned, the royal power in the Roman community could never be left vacant When the king died, the elders at once took his place and exercised the prerogatives of regal power. According to the immutable principle however that only one can be master at a time, even now it was only one of them that ruled, and such an "interim king" (-interrex-) was distinguished from the king nominated for life simply in respect to the duration, not in respect to the plenitude, of his authority. The duration of the office of -interrex- was fixed for the individual holders at not more than five days; it circulated accordingly among the senators on the footing that, until the royal office was again permanently filled up, the temporary holder at the expiry of that term nominated a successor to himself, likewise for five days, agreeably to the order of succession fixed by lot. There was not, as may readily be conceived, any declaration of allegiance to the -interrex- on the part of the community. Nevertheless the -interrex- was entitled and bound not merely to perform all the official acts otherwise pertaining to the king, but even to nominate a king for life— with the single exception, that this latter right was not vested in the first who held the office, presumably because the first was regarded as defectively appointed inasmuch as he was not nominated by his predecessor. Thus this assembly of elders was the ultimate holder of the ruling power (-imperium-) and the divine protection (-auspicia-) of the Roman commonwealth, and furnished the guarantee for the uninterrupted continuance of that commonwealth and of its monarchical—though not hereditarily monarchical—organization. If therefore this senate subsequently seemed to the Greeks to be an assembly of kings, this was only what was to be expected; it had in fact been such originally.

The Senate and the Resolutions of the Community: -Patrum Auctoritas-

But it was not merely in so far as the idea of a perpetual kingdom found its living expression in this assembly, that it was an essential member of the Roman constitution. The council of elders, indeed, had no title to interfere with the official functions of the king. The latter doubtless, in the event of his being unable personally to lead the army or to decide a legal dispute, took his deputies at all times from the senate; for which reason subsequently the highest posts of command were regularly bestowed on senators alone, and senators were likewise employed by preference as jurymen. But the senate, in its collective capacity, was never consulted in the leading of the army or in the administration of justice; and therefore there was no right of military command and no jurisdiction vested in the senate of the later Rome. On the other hand the council of elders was held as called to the guardianship of the existing constitution against encroachments by the king and the burgesses. On the senate devolved the duty of examining every resolution adopted by the burgesses at the suggestion of the king, and of refusing to confirm it if it seemed to violate existing rights; or, which was the same thing, in all cases where a resolution of the community was constitutionally requisite—as on every alteration of the constitution, on the reception of new burgesses, on the declaration of an aggressive war—the council of elders had a right of veto. This may not indeed be regarded in the light of legislation pertaining jointly to the burgesses and the senate, somewhat in the same way as to the two chambers in the constitutional state of the present day; the senate was not so much law-maker as law-guardian, and could only cancel a decree when the community seemed to have exceeded its competence—to have violated by its decree existing obligations towards the gods or towards foreign states or organic institutions of the community. But still it was a matter of the greatest importance that—to take an example—when the Roman king had proposed a declaration of war and the burgesses had converted it into a decree, and when the satisfaction which the foreign community seemed bound to furnish had been demanded in vain, the Roman envoy invoked the gods as witnesses of the wrong and concluded with the words, "But on these matters we shall consult the elders at home how we may obtain our rights;" it was only when the council of elders had declared its consent, that the war now decreed by the burgesses and approved by the senate was formally declared. Certainly it was neither the design nor the effect of this rule to occasion a constant interference of the senate with the resolutions of the burgesses, and by such guardianship to divest them of their sovereign power; but, as in the event of a vacancy in the supreme office the senate secured the continuance of the constitution, we find it here also as the shield of legal order in opposition even to the supreme power—the community.

The Senate As State-Council

With this arrangement was probably connected the apparently very ancient usage, in virtue of which the king previously submitted to the senate the proposals that were to be brought before the burgesses, and caused all its members one after another to give their opinion on the subject. As the senate had the right of cancelling the resolution adopted, it was natural for the king to assure himself beforehand that no opposition was to be apprehended from that quarter; as indeed in general, on the one hand, it was in accordance with Roman habits not to decide matters of importance without having taken counsel with other men, and on the other hand the senate was called, in virtue of its very composition, to act as a state-council to the ruler of the community. It was from this usage of giving counsel, far more than from the prerogatives which we have previously described, that the subsequent extensive powers of the senate were developed; but it was in its origin insignificant and really amounted only to the prerogative of the senators to answer, when they were asked a question. It may have been usual to ask the previous opinion of the senate in affairs of importance which were neither judicial nor military, as, for instance—apart from the proposals to be submitted to the assembly of the people—in the imposition of task-works and taxes, in the summoning of the burgesses to war-service, and in the disposal of the conquered territory; but such a previous consultation, though usual, was not legally necessary. The king convoked the senate when he pleased, and laid before it his questions; no senator might declare his opinion unasked, still less might the senate meet without being summoned, except in the single case of its meeting on occasion of a vacancy to settle the order of succession in the office of -interrex-. That the king was moreover at liberty to call in and consult other men whom he trusted alongside of, and at the same time with, the senators, is in a high degree probable. The advice, accordingly, was not a command; the king might omit to comply with it, while the senate had no other means for giving practical effect to its views except the already-mentioned right of cassation, which was far from being universally applicable. "I have chosen you, not that ye may be my guides, but that ye may do my bidding:" these words, which a later author puts into the mouth of king Romulus, certainly express with substantial correctness the position of the senate in this respect.

The Original Constitution of Rome

Let us now sum up the results. Sovereignty, as conceived by the Romans, was inherent in the community of burgesses; but the burgess-body was never entitled to act alone, and was only entitled to co-operate in action, when there was to be a departure from existing rules. By its side stood the assembly of the elders of the community appointed for life, virtually a college of magistrates with regal power, called in the event of a vacancy in the royal office to administer it by means of their own members until it should be once more definitively filled, and entitled to overturn the illegal decrees of the community. The royal power itself was, as Sallust says, at once absolute and limited by the laws (-imperium legitimum-); absolute, in so far as the king's command, whether righteous or not, must in the first instance be unconditionally obeyed; limited, in so far as a command contravening established usage and not sanctioned by the true sovereign—the people—carried no permanent legal consequences. The oldest constitution of Rome was thus in some measure constitutional monarchy inverted. In that form of government the king is regarded as the possessor and vehicle of the plenary power of the state, and accordingly acts of grace, for example, proceed solely from him, while the administration of the state belongs to the representatives of the people and to the executive responsible to them. In the Roman constitution the community of the people exercised very much the same functions as belong to the king in England: the right of pardon, which in England is a prerogative of the crown, was in Rome a prerogative of the community; while all government was vested in the president of the state.

If, in conclusion, we inquire as to the relation of the state itself to its individual members, we find the Roman polity equally remote from the laxity of a mere defensive combination and from the modern idea of an absolute omnipotence of the state. The community doubtless exercised power over the person of the burgess in the imposition of public burdens, and in the punishment of offences and crimes; but any special law inflicting, or threatening to inflict, punishment on an individual on account of acts not universally recognized as penal always appeared to the Romans, even when there was no flaw in point of form, an arbitrary and unjust proceeding. Far more restricted still was the power of the community in respect of the rights of property and the rights of family which were coincident, rather than merely connected, with these; in Rome the household was not absolutely annihilated and the community aggrandized at its expense, as was the case in the police organization of Lycurgus. It was one of the most undeniable as well as one of the most remarkable principles of the primitive constitution of Rome, that the state might imprison or hang the burgess, but might not take away from him his son or his field or even lay permanent taxation on him. In these and similar things the community itself was restricted from encroaching on the burgess, nor was this restriction merely ideal; it found its expression and its practical application in the constitutional veto of the senate, which was certainly entitled and bound to annul any resolution of the community contravening such an original right. No community was so all-powerful within its own sphere as the Roman; but in no community did the burgess who conducted himself un-blameably live in an equally absolute security from the risk of encroachment on the part either of his fellow-burgesses or of the state itself.

These were the principles on which the community of Rome governed itself—a free people, understanding the duty of obedience, clearly disowning all mystical priestly delusion, absolutely equal in the eye of the law and one with another, bearing the sharply-defined impress of a nationality of their own, while at the same time (as will be afterwards shown) they wisely as well as magnanimously opened their gates wide for intercourse with other lands. This constitution was neither manufactured nor borrowed; it grew up amidst and along with the Roman people. It was based, of course, upon the earlier constitutions—the Italian, the Graeco-Italian, and the Indo-Germanic; but a long succession of phases of political development must have intervened between such constitutions as the poems of Homer and the Germania of Tacitus delineate and the oldest organization of the Roman community. In the acclamation of the Hellenic and in the shield-striking of the Germanic assemblies there was involved an expression of the sovereign power of the community; but a wide interval separated forms such as these from the organized jurisdiction and the regulated declaration of opinion of the Latin assembly of curies. It is possible, moreover, that as the Roman kings certainly borrowed the purple mantle and the ivory sceptre from the Greeks (not from the Etruscans), the twelve lictors also and various other external arrangements were introduced from abroad. But that the development of the Roman constitutional law belonged decidedly to Rome or, at any rate, to Latium, and that the borrowed elements in it are but small and unimportant, is clearly demonstrated by the fact that all its ideas are uniformly expressed by words of Latin coinage. This constitution practically established for all time the fundamental conceptions of the Roman state; for, as long as there existed a Roman community, in spite of changes of form it was always held that the magistrate had absolute command, that the council of elders was the highest authority in the state, and that every exceptional resolution required the sanction of the sovereign or, in other words, of the community of the people.

CHAPTER VI

The Non-Burgesses and the Reformed Constitution

Amalgamation of the Palatine and Quirinal Cities

The history of every nation, and of Italy more especially, is a —synoikismos— on a great scale. Rome, in the earliest form in which we have any knowledge of it, was already triune, and similar incorporations only ceased when the spirit of Roman vigour had wholly died away. Apart from that primitive process of amalgamation of the Ramnes, Titles, and Luceres, of which hardly anything beyond the bare fact is known, the earliest act of incorporation of this sort was that by which the Hill-burgesses became merged in the Palatine Rome. The organization of the two communities, when they were about to be amalgamated, may be conceived to have been substantially similar; and in solving the problem of union they would have to choose between the alternatives of retaining duplicate institutions or of abolishing one set of these and extending the other to the whole united community. They adopted the former course with respect to all sanctuaries and priesthoods. Thenceforth the Roman community had its two guilds of Salii and two of Luperci, and as it had two forms of Mars, it had also two priests for that divinity—the Palatine priest, who afterwards usually took the designation of priest of Mars, and the Colline, who was termed priest of Quirinus. It is likely, although it can no longer be proved, that all the old Latin priesthoods of Rome—the Augurs, Pontifices, Vestals, and Fetials—originated in the same way from a combination of the priestly colleges of the Palatine and Quirinal communities. In the division into local regions the town on the Quirinal hill was added as a fourth region to the three belonging to the Palatine city, viz. the Suburan, Palatine, and suburban (-Esquiliae-). In the case of the original —synoikismos— the annexed community was recognized after the union as at least a tribe (part) of the new burgess-body, and thus had in some sense a continued political existence; but this course was not followed in the case of the Hill-Romans or in any of the later processes of annexation. After the union the Roman community continued to be divided as formerly into three tribes, each containing ten wardships (-curiae-); and the Hill-Romans—whether they were or were not previously distributed into tribes of their own—must have been inserted into the existing tribes and wardships. This insertion was probably so arranged that, while each tribe and wardship received its assigned proportion of the new burgesses, the new burgesses in these divisions were not amalgamated completely with the old; the tribes henceforth presented two ranks: the Tities, Ramnes, and Luceres being respectively subdivided into first and second (-priores-, -posteriores-). With this division was connected in all probability that arrangement of the organic institutions of the community in pairs, which meets us everywhere. The three pairs of Sacred Virgins are expressly described as representatives of the three tribes with their first and second ranks; and it may be conjectured that the pair of Lares worshipped in each street had a similar origin. This arrangement is especially apparent in the army: after the union each half-tribe of the tripartite community furnished a hundred horsemen, and the Roman burgess cavalry was thus raised to six "hundreds," and the number of its captains probably from three to six. There is no tradition of any corresponding increase to the infantry; but to this origin we may refer the subsequent custom of calling out the legions regularly two by two, and this doubling of the levy probably led to the rule of having not three, as was perhaps originally the case, but six leaders-of-division to command the legion. It is certain that no corresponding increase of seats in the senate took place: on the contrary, the primitive number of three hundred senators remained the normal number down to the seventh century; with which it is quite compatible that a number of the more prominent men of the newly annexed community may have been received into the senate of the Palatine city. The same course was followed with the magistracies: a single king presided over the united community, and there was no change as to his principal deputies, particularly the warden of the city. It thus appears that the ritual institutions of the Hill-city were continued, and that the doubled burgess-body was required to furnish a military force of double the numerical strength; but in other respects the incorporation of the Quirinal city into the Palatine was really a subordination of the former to the latter. If we have rightly assumed that the contrast between the Palatine old and the Quirinal new burgesses was identical with the contrast between the first and second Tities, Ramnes, and Luceres, it was thus the -gentes-of the Quirinal city that formed the "second" or the "lesser." The distinction, however, was certainly more an honorary than a legal precedence. At the taking of the vote in the senate the senators taken from the old clans were asked before those of the "lesser." In like manner the Colline region ranked as inferior even to the suburban (Esquiline) region of the Palatine city; the priest of the Quirinal Mars as inferior to the priest of the Palatine Mars; the Quirinal Salii and Luperci as inferior to those of the Palatine. It thus appears that the —synoikismos—, by which the Palatine community incorporated that of the Quirinal, marked an intermediate stage between the earliest —synoikismos— by which the Tities, Ramnes, and Luceres became blended, and all those that took place afterwards. The annexed community was no longer allowed to form a separate tribe in the new whole, but it was permitted to furnish at least a distinct portion of each tribe; and its ritual institutions were not only allowed to subsist—as was afterwards done in other cases, after the capture of Alba for example—but were elevated into institutions of the united community, a course which was not pursued in any subsequent instance.

Dependents and Guests

This amalgamation of two substantially similar commonwealths produced rather an increase in the size than a change in the intrinsic character of the existing community. A second process of incorporation, which was carried out far more gradually and had far deeper effects, may be traced back, so far as the first steps in it are concerned, to this epoch; we refer to the amalgamation of the burgesses and the —metoeci—. At all times there existed side by side with the burgesses in the Roman community persons who were protected, the "listeners" (-clientes-), as they were called from their being dependents on the several burgess-households, or the "multitude" (-plebes-, from -pleo-, -plenus-), as they were termed negatively with reference to their want of political rights.41 The elements of this intermediate stage between the freeman and the slave were, as has been shown42 already in existence in the Roman household: but in the community this class necessarily acquired greater importance -de facto- and -de jure-, and that from two reasons. In the first place the community might itself possess half-free clients as well as slaves; especially after the conquest of a town and the breaking up of its commonwealth it might often appear to the conquering community advisable not to sell the mass of the burgesses formally as slaves, but to allow them the continued possession of freedom -de facto-, so that in the capacity as it were of freedmen of the community they entered into relations of clientship whether to the clans, or to the king. In the second place by means of the community and its power over the individual burgesses, there was given the possibility of protecting the clients against an abusive exercise of the -dominium- still subsisting in law. At an immemorially early period there was introduced into Roman law the principle on which rested the whole legal position of the —metoeci—, that, when a master on occasion of a public legal act—such as in the making of a testament, in an action at law, or in the census—expressly or tacitly surrendered his -dominium-, neither he himself nor his lawful successors should ever have power arbitrarily to recall that resignation or reassert a claim to the person of the freedman himself or of his descendants. The clients and their posterity did not by virtue of their position possess either the rights of burgesses or those of guests: for to constitute a burgess a formal bestowal of the privilege was requisite on the part of the community, while the relation of guest presumed the holding of burgess-rights in a community which had a treaty with Rome. What they did obtain was a legally protected possession of freedom, while they continued to be -de jure- non-free. Accordingly for a lengthened period their relations in all matters of property seem to have been, like those of slaves, regarded in law as relations of the patron, so that it was necessary that the latter should represent them in processes at law; in connection with which the patron might levy contributions from them in case of need, and call them to account before him criminally. By degrees, however, the body of —metoeci— outgrew these fetters; they began to acquire and to alienate in their own name, and to claim and obtain legal redress from the Roman burgess-tribunals without the formal intervention of their patron.

In matters of marriage and inheritance, equality of rights with the burgesses was far sooner conceded to foreigners43 than to those who were strictly non-free and belonged to no community; but the latter could not well be prohibited from contracting marriages in their own circle and from forming the legal relations arising out of marriage—those of marital and paternal power, of -agnatio- and -gentilitas- of heritage and of tutelage—after the model of the corresponding relations among the burgesses.

Similar consequences to some extent were produced by the exercise of the -ius hospitii-, in so far as by virtue of it foreigners settled permanently in Rome and established a domestic position there. In this respect the most liberal principles must have prevailed in Rome from primitive times. The Roman law knew no distinctions of quality in inheritance and no locking up of estates. It allowed on the one hand to every man capable of making a disposition the entirely unlimited disposal of his property during his lifetime; and on the other hand, so far as we know, to every one who was at all entitled to have dealings with Roman burgesses, even to the foreigner and the client, the unlimited right of acquiring moveable, and (from the time when immoveables could be held as private property at all) within certain limits also immoveable, estate in Rome. Rome was in fact a commercial city, which was indebted for the commencement of its importance to international commerce, and which with a noble liberality granted the privilege of settlement to every child of an unequal marriage, to every manumitted slave, and to every stranger who surrendering his rights in his native land emigrated to Rome.