ago, was not a native of the city of Rome, as all the members of the
Julian line had been, nor did he belong to a noble family. These two
facts might almost be taken as an omen of the great change which he and
his successors were to bring about in the position of Rome and Italy
in the Roman world and in the political standing of the senate. The
exceptional position which Rome and Italy had held under the republic
was taken from them in part by robbing them of their privileges and in
part by raising the provinces to a higher political plane. Augustus
had started the new movement by stationing troops in Italy and by
taking the municipal departments in Rome under his control. Within a
century the same fate befell other Italian municipalities which had
befallen Rome, and they had to surrender to the emperor the control
of their finances and their jurisdiction in all important civil and
criminal cases. The privilege which at first Rome and later the Italian
municipalities guarded most jealously was their exclusive right to
Roman and Latin citizenship. Claudius turned from this tradition when
he granted these privileges to certain Gallic cities, and the Flavian
emperors violated it in a still more striking way by their generous
treatment of many cities in Spain. The levelling down of Italy to
the position of the provinces, so far as citizenship was concerned,
was completed when Caracalla in 212 granted Roman citizenship to
practically all freemen in the empire.[10] In this connection may be
mentioned a significant change which was made in the organization of
the army. The legions from the time of Hadrian on were recruited in
all parts of the empire, and officers were no longer drawn solely from
the Western and Latin-speaking portion of the Roman world, but from
the East also. The army therefore ceased to be the great Romanizing
influence which it had been in the past, and what was still worse, a
feeling of local solidarity grew up which was destined in the end to
be fatal to the unity of the empire. It was this feeling which gave
rise to the nationalist movement in the third century, and the Gallic
kingdom of Postumus in the West in that century and the kingdom of
Zenobia in Palmyra in the East were concrete manifestations of this
feeling and at the same time premonitions of the future dissolution of
the empire.
We noticed not only that Vespasian was born outside of Rome, but
also that he was of lowly birth. Perhaps the latter fact accounts in
part for the hostility which the senate showed toward him, and for
the effort which it made in the early part of his reign to assert its
authority. The movement was short-lived. The prince and the senate
were partners of unequal strength in the dyarchy which Augustus had
established, and Vespasian soon made this fact clear to the senate. It
came out still more clearly in the reign of his younger son Domitian,
who had himself made censor for life, and by virtue of this authority
drew up the lists of senators to suit his own pleasure. The tradition
of the city-state had been violated and the prestige of the senate had
been lowered when Julius Caesar admitted provincials to the senate.
This revolutionary precedent was freely followed by emperors during
the second half of the first century. This transformation of the Roman
senate into a body made up of representatives drawn from all parts
of the empire was part of the larger change of the Roman _imperium_
into an international world-state. The senate was still allowed to
elect the emperor, but the election meant nothing more than the
formal ratification of a choice made by the candidate’s predecessor
or by the army, and “Caesar’s candidates” for the magistracies were
always elected by the senate. The senate’s legislative powers had
almost disappeared, because the senate had given up to the emperor
almost entirely its right of initiative. We have already observed the
importance which the “discourses of the prince” had acquired in the
field of legislation. Through the opportunity which they gave him of
declaring his will, and by the issuance of edicts, decrees and other
“constitutions,” as they were called, the emperor took the lawgiving
power almost completely into his own hands. The one real power which
the senate exercised under the empire, long after its legislative and
electoral functions had lost most of their meaning, was its right
to sit as a court, especially in important political cases. In this
capacity it had authority to impose the penalties even of banishment,
deportation, and death, but by the beginning of the third century this
jurisdiction, except where senators were charged with crimes, had
passed to the emperor. By the close of this century the Roman senate
had completed the cycle and come back to the status which it had held
in the primitive city-state, that of a municipal council.
This gradual loss of power by the senate meant a corresponding
increase of course in the influence of the emperor, but his supremacy
was assured also by positive additions to his authority in other
directions. Hadrian in the early part of the second century built up
a bureaucracy[11] so large and so systematically organized that it
enabled him and his successors to reach into the remotest parts of the
empire and control the government of municipalities and the lives of
all the citizens. Probably the world has never known so complete and
crushing a paternalistic system as is revealed to us by the _Codes_ of
Theodosius and Justinian in the fifth and sixth centuries.
The drift toward autocracy was greatly accelerated by the influence
which Egypt and the Orient exercised on the development of the
principate. Perhaps the Oriental practice of identifying the secular
and divine rulers of the world never found complete acceptance in Rome,
but the erection of altars in the provinces to Rome and Augustus,
the attribution of the titles “Master and God” to Domitian by his
procurators, and in the third century the introduction into the court
of Elagabalus of the Persian practice of paying divine honors to the
sovereign, the presence of eunuchs in the palace of Aurelian, and the
wearing of the Eastern diadem by Diocletian, show clearly enough that
the principate was taking on the form of an Oriental despotism. The
conception of the emperor’s authority which these practices suggest
finds expression in the _Code_ of Justinian in the sixth century.[12]
The first words of the rescript in which Justinian authorizes Tribonian
to codify the laws of the empire are: “We, under divine guidance
governing our realm, which has been entrusted to us by the powers
above, etc.” We shall see in the next chapter that under the prevailing
theory of Roman lawyers from the second to the sixth century the
emperor derived his authority from the people, but this utterance of
Justinian and other passages in the _Code_ show us the beginnings
of the doctrine of the divine right of kings which Rome transmitted
from the Orient to the states of modern times. When this point in the
development of the empire had been reached, the preëminence of the city
of Rome had gone, the distinction between Italy and the provinces
had been obliterated, Roman citizenship had lost its significance,
the splendor of the senate and the magistracies had faded, and the
municipalities, which had been the pride and glory of the early
empire, were plunged in poverty and wretchedness. In their place is
an autocrat, kept in power by an army made up largely of barbarians,
who carried out his wishes through a bureaucracy; and this, in turn,
was supported by a body of citizens divided into groups by a system
of castes, and held in most cases to the soil and to their hereditary
occupations by the will of the state.
II. ROMAN POLITICS AND MODERN POLITICS
1. ROME AND THE CHURCH OF ROME
In the brilliant argument which Belloc makes in _Europe and the Faith_
to prove that “the Roman Empire with its institutions and its spirit
was the sole origin of European civilization,” he goes so far as to
maintain that “the divisions and subdivisions of Europe, the parish,
the county, the province, the fixed national traditions with their
boundaries, the routes of communication between them ... all these
derive entirely from the old Roman Empire, our well-spring.” He finds
in the Church of Rome the medium through which this inheritance has
been transmitted. With this Catholic essayist the Protestant historian,
Harnack, is in substantial agreement when he writes: “The Empire has
not perished, but has only undergone a transformation.... The Roman
Church is the old Roman Empire consecrated by the Gospel.”
Before we take up for consideration certain points of resemblance and
of difference between our political institutions and those of ancient
Rome, it is interesting to stop for a moment to ask ourselves in what
respects the tradition and the ideals of the Roman state have been
perpetuated by the Church of Rome. In the first place the Church is the
lineal successor of the Empire in the sense that she saved Europe from
chaos when the political ties which bound its several component parts
to Rome were severed, and she conserved with all her power through the
Middle Ages the Roman elements which escaped being engulfed by the
wave of barbarism. More than that, she kept alive the old tradition of
world-empire, no longer of the flesh, but of the spirit. Like the old
Empire her domain embraced diverse lands and peoples. She resembled
and she resembles the Empire now in the fact that she follows law
and tradition strictly. She requires implicit obedience from the
individual, and the interests of the individual are subordinated to
those of the organization. In all these characteristics she is the
true spiritual daughter of the Roman Empire. We noticed a moment ago
that the realm of the Church, like that of the Emperor, included many
different lands. The territorial parallelism between the two systems
goes beyond this general point of resemblance.
As Sohm has put it in his _Outlines of Church History_, “the city
or _civitas_ was the lowest political unit of the Empire. It became
the lowest political unit of the Church. In the constitution of the
Church the territory of the city appeared as the episcopal diocese.
In the constitution of the Empire the province, with the provincial
governor, stood above the _civitas_. The episcopal dioceses were united
in like manner under the direction of the metropolitan, the bishop
of a provincial capital, forming an ecclesiastical province. In the
constitution of the Empire, from the fourth century, several provinces
composed an imperial diocese under an imperial governor (vicarius). The
imperial diocese also (at least in certain parts of the Eastern Greek
Church) formed, after the fourth century, part of the ecclesiastical
constitution, as the district of a patriarch, to whom the metropolitans
of the imperial dioceses were subordinate. Finally the general union
of the churches corresponded to the general union of the Empire,
with the imperial Council (the so-called Oecumenical Council) as its
legitimate organ.... Thus in its old age the Roman Empire bequeathed
its constitution to the young Church.... It was its last great legacy
to the future.”
And later Sohm goes on to say: “To this day the diocese of the
Catholic bishop is the copy of the Roman _civitas_; the province of
the Catholic archbishop, the copy of the Roman imperial province;
and the Catholic Church under a Pope declared omnipotent by law, the
copy of the ancient Roman Empire, with its Caesars who claimed the
world as their possession.” The Church extended its limits in ancient
times and still extends them by new conquests, just as the Empire
did. The missionary expeditions of Gregory in the sixth century, like
the Jesuit enterprises in North and South America in recent times,
were carried out in the spirit of Caesar or Trajan, and, after the
Christian conquest of England, Gregory spoke as a Roman Emperor might
have spoken, when he said “In one faith He linked the boundaries of
the East and the West.” The absolute power of the Emperor in the later
period is continued in tradition by the infallibility of the Pope, and
the remarks of the city prefect, Themistius, to Theodosius the Great,
“thou art the living law,” might be made with propriety to the Pope
of today. The title “Pontifex Maximus” is common to both rulers, and
there is a striking similarity between other ecclesiastical titles and
those in the official Roman list of the _Notitia Dignitatum_. Latin
is the official language of the Church, as it was of the Empire; the
Pope consults the College of Cardinals, as the Emperor consulted the
Senate; Canon Law, which has been derived in part from Roman Civil
law, is codified as Roman Law was; the Councils seem to follow the
parliamentary procedure of the Roman Senate, and the dress of Church
officials is reminiscent of Roman times. In other words, what is
characteristic of the spirit of the organization and of the externals
of the Church of Rome is a direct inheritance from the Empire.
2. THE INDIVIDUAL AND THE STATE
Let us pass now to consider the relation which our political theories
and institutions bear to those of Rome. A wise government aims to
strike a judicious balance between the rights of the individual and
the safety and welfare of the community. This happy mean can best be
determined by watching the play of the two principles in concrete
cases. Such an opportunity is offered to us by the history of the
ancient city-state which sets before us examples in which the two
ideals of government mentioned above are combined in varying degrees.
These instances range from Athens which favored the freedom of the
citizen to Delphi or Sparta which exalted the importance of the
commonwealth.
We owe also to the Greeks and Romans the discussion of another
fundamental political problem and various attempts to solve it. Is
the ideal state a state ruled by one person, by a few persons, or by
all the citizens? This question was discussed with great acumen and
learning by Greek writers on political theory, and their views with
certain modifications have been transmitted to us by Cicero in his
treatise _On the Commonwealth_. Indeed the merits and defects of all
systems of government have been exemplified in the history of Rome
itself, which ran through the entire gamut of governmental forms.
The two most important Roman writers of the classical period on
political theory were Cicero and Seneca. Unfortunately only a part of
Cicero’s treatise _On the Laws_ has come down to us, and only fragments
of his book _On the Commonwealth_ are extant, but these two works were
known in their entirety to the early Roman jurists and to the Christian
Fathers, and have exerted a great influence on them, and through them,
upon us. Even in their present fragmentary form they show us what an
important contribution Cicero has made to political philosophy. Quite
outside the fact that he served as an intermediary between Greek
political thinking and that of our own times, his two works are of
great value to us, both because of Cicero’s method of approaching the
subject of the state and because of his conception of the organization
of society. Most of Cicero’s predecessors, with the exception of
Panaetius and Polybius, direct their attention to the ideal state, to
an imaginary commonwealth. Cicero in his _Commonwealth, De Re Publica_,
II. 1. 3, tells us that it is his purpose to study the Roman state “in
its birth, its growth, its maturity, and in its present strength and
vigor.” In other words he introduces the modern method of studying the
organization of actual states, and we have set forth, perhaps for the
first time, the fruitful conception of the state as an organism.
In discussing the organization of society, Cicero finds the source
of law and justice, not in utility, but in nature. Right and wrong
are determined _naturae norma_, (_De Legibus_, I. 16. 44). This law
of nature is not one thing in Rome, another in Athens; it is not one
thing today, another tomorrow, but it is eternal and immutable, (_De Re
Publica_, III. 22. 33). This conception of the _ius naturale_ was taken
up by Ulpian in the third century and by other early jurists, developed
in the _Code_ of Justinian, and handed down through the Middle Ages to
our own time. It covers “that body of principles of justice and reason
which men can rationally apprehend, and which forms the ideal norm or
standard of right conduct and of the justice of social institutions.”
From the Civil law it passed into Canon law through the encyclopedic
work of St. Isidore in the seventh century, and gave rise to the
tripartite division which Gratian sets forth in the _Decretals_, when
he writes: “_Ius naturale_ appears with the beginnings of the rational
creation, and remains unchangeable: the _ius consuetudinis_ (i.e.,
the _ius gentium_) had its inception later, when men began to live
together.... But the _ius constitutionis_ (i.e., the _ius civile_)
begins with the principles which the Lord delivered to Moses,” i.e.,
with written law. These distinctions have furnished the starting
point in most modern discussions of the subject. Cicero defined the
Commonwealth as “the affair of the people, but the people is not any
assemblage of men, gathered together in any fashion, but a gathering
united under a common law and in the enjoyment of a common well being,”
(_De Re Publica_, I. 25. 39). From this definition he seems to imply
that the state has a twofold purpose, to protect the individual, and
to promote his welfare. In one passage in his _Commonwealth_, (_De Re
Publica_, III. 13. 23), he makes a speaker in the dialogue enunciate a
theory of the state, out of which Rousseau may well have developed his
doctrine of the Social Contract: “But when one person fears another,
when man fears man, and class, class, then, since no one trusts his
own strength, a compact is made between the people and the rulers,
out of which springs that which Scipio approved--a state whose form is
determined by agreement.” This theory of the Social Compact, probably
derived from Cicero, was put forth again in the eleventh century. So
far as the form of the state goes, it may be monarchical, aristocratic,
or democratic, or these three elements may be combined in it, as Cicero
thought they were in the Roman state; Cicero followed Aristotle and
particularly Polybius, in the latter’s discussion of the constitutions
of Rome and Sparta. The views which Cicero held on this point were
taken up for consideration and emphatically denied by Jean Bodin in his
great work on the state in the sixteenth century.
Cicero regards any government as legitimate which secures justice and
promotes the well being of all its citizens, but he is dissatisfied
with monarchy or aristocracy. As the Carlyles have remarked, in their
_History of Mediaeval Political Theory in the West_, which has been
of great service to me at many points in this chapter in tracing the
development of Roman political doctrines through the Middle Ages,
Cicero believed that “every citizen had in him some capacity for
political authority, some capacity which ought to find a means of
expression.” Another fundamental social conception which comes to the
surface in Cicero, and is still more clearly stated in Seneca and
Marcus Aurelius and the Christian writers, is that of the homogeneity
of the human race, the brotherhood of man. To the Greeks, before the
time of Stoicism, there was a great gulf between themselves and the
barbarians. The Romans showed sometimes a similar contempt for other
people, but they recognized the intellectual and artistic superiority
of the Greeks. A century and a half before Cicero’s time Plautus
seriously or humorously refers to his countrymen as barbarians, when
compared with the Greeks. In other words the Romans believed in their
own superiority in some fields of human activity, but recognized their
inferiority to other peoples in other respects. This made them tolerant
of the institutions and practices of races which were brought within
the Empire, and formed the basis of that conception of the brotherhood
of man which did so much to ameliorate the condition of the lowly,
and which is the ideal towards which we somewhat ineffectually strive
today. Allied to this cosmopolitan doctrine of the brotherhood of
man, was the Roman doctrine concerning the composition of individual
societies or states. Aristotle’s theory of the organization of society
presupposes the inequality of the men who compose it. Cicero believed
in natural equality. We are alike, he says, in esteeming the same
virtues, in hating the same vices, in our possession of reason and in
our capacity for acquiring knowledge. Seneca is almost at the point
of extending this conception of natural equality to include even
slaves, for, as he says in his treatise on _The Giving and Receiving
of Favors_: “fortune has granted the slave’s body to his master, he
buys it and sells it, but the soul of a slave can not be bought and
sold.” We shall have occasion to return to this point later, but, while
we are speaking of Seneca, it may be well to mention his explanation
of the origin of the law of nature which was discussed a few moments
ago. The existence of the _ius naturale_ presupposes a state of nature
antecedent to the conventional institutions of society. This golden age
was not one of perfection, but rather of innocence. Avarice brought
it to an end. The institutions of society were made necessary by the
weaknesses of human nature. This view of Seneca harmonized with the
conception which the Christian Fathers later held of the condition
of man before the Fall, before sin came into the world, and has been
transmitted by them to us.
To return now to the doctrine of the natural equality of men and to
the belief that the universal capacity for the exercise of political
authority should find adequate expression, out of these principles
grew the doctrine which Roman lawyers from the second to the sixth
century have noted here and there in the _Codes_, that the power which
a government exercises is derived from the people. This source of
authority the emperors recognized in the _Codes_ up to the time of
Justinian. As the Carlyles have shown, this doctrine was accepted by
the lawyers in the Middle Ages. It applies to judicial authority, as
Bulgarus of Bologna teaches in the twelfth century, and to legislative
power, as Irnerius of the same century holds. Their arguments come
from the Roman period, because they are drawn from the _Corpus Iuris
Civilis_, and they borrow phrases from the _Digest_ and the _Code_.
The question naturally arose in their minds whether the people could
resume their authority or not. Scholars were divided on this point.
Some of them maintained that the popular will still found expression
in custom, and that therefore custom could override law. Most of them
believed that universal custom had this power, but that local custom
did not. Consequently they held that the sovereignty of the people
still found expression in custom. In passing we may note that we have
here the distinction between “unwritten” and “written” law or between
common law and statute law. The theory that the authority in the state
emanated from the people continued to be the prevailing doctrine as
late as the middle of the thirteenth century, as the Carlyles have
shown. It is maintained by Nicholas of Cues in the fifteenth century.
In his _Systematic Politics, Confirmed by Examples from Sacred
and Profane History_, published in 1610, the Calvinist, Johannes
Althusius, carried the doctrine to its logical conclusion that, since
the authority in a state rested on a contract between the people and
their ruler, the people had the right to depose him and resume their
delegated power. Hobbes in his _Leviathan_, which appeared in 1641,
believed in the principle of the contract, but in his opinion the
compact is made by the members of society with one another. The ruler
does not enter into the covenant. Consequently he is not bound by it.
The radical teachings of Althusius lay dormant for a century and a
half, to be taken up by Rousseau in his _Contrat Social_ and to form
the basis of the famous “Declaration of the Rights of Man” of 1789.