Science of Politics_: According to Rousseau “every man gives up
himself and his individual rights as fully as in Hobbes’ covenant.
But the surrender is to the whole society, not to a sovereign. The
government is not the sovereign, but a mediator between the community
in its corporate capacity and its individual members as subjects.” In
his _History of the Theory of Sovereignty since Rousseau_, Merriam
has traced the development of the doctrine into our own times. The
conclusion at which he arrives for our own day is that “those who
adhere to the sovereignty of the general will or of public opinion,
sentiment, reason, do not mean that this sovereign is at any given
moment organized to express the will of the State; they mean that
it is to be obeyed, not immediately but ultimately.” Modern theory
therefore has come back to the position of Cicero and the Roman
jurists, although, as Bryce has said in his _Modern Democracies_, the
acceptance and development of the doctrine of popular sovereignty by
Rome, “was due to the pressure of actual grievances far more than to
any theories regarding the nature of government and the claims of the
people.” Before leaving the subject of popular sovereignty it is worth
while noticing the limitations under which it is exercised even in a
pure democracy and the transformation which a democracy inevitably
undergoes. On the first point, if we recall the history of the Roman
Republic which has been sketched in the preceding chapter, we shall
feel that, although Bryce is speaking of modern democracies, no more
accurate description can be given of the limitations which hemmed
in the Roman democracy than is to be found in his statement that
“popular powers are in practice more frequently negative or deterrent
than positive. The people can more readily reject a course proposed
to them than themselves suggest a better course.” Equally applicable
to the history of the patriciate, the senatorial oligarchy, and the
plutocracy under the Republic is his remark, drawn from a study of
modern conditions, that “nature is always tending to throw power into
the hands of the Few, and the Few always tend by a like natural process
to solidify into a Class, as the vapours rising from the earth gather
into clouds. Fortunately the Class, by a like process, is always
tending to dissolve.... Thus Free Government cannot but be, and has in
reality always been, an Oligarchy within a Democracy.”
The opposite doctrine to the one which we have been considering, that
of the divine right of kings, comes to the surface sporadically in the
_Code_ of Justinian, but it is not definitely formulated until we reach
the time of Gregory the Great in the sixth century. He develops the new
doctrine fully in his _Pastoral Rules_ and in his treatise on the book
of Job, as the Carlyles have shown, and it is from him that it passed
down into the Middle Ages and into later times. The Carlyles trace its
development to three causes: (1) the need of checking the anarchical
tendency of the primitive Church; (2) the favored position which the
Church had under the protection of the Emperor after the conversion of
Constantine; and (3) the influence of the Old Testament conception of
the position of the King of Israel. The teachings of the Old Testament
were reinforced by those of the New Testament. In the _Epistle to the
Romans_ we read, for instance: “Let every soul be subject unto the
higher powers. For there is no power but of God; the powers that be are
ordained of God,” and elsewhere: “Submit yourselves to every ordinance
of man for the Lord’s sake; whether it be to the king, as supreme; or
unto governors, as unto them that are sent by him for the punishment of
evil doers, and for the praise of them that do well,” I. _Peter_, ii.
13-14. This second explanation of the source of authority in the state,
which the phrases used by the Roman jurists occasionally suggest, was
accepted by the early Church and transmitted by it through the Middle
Ages to modern times. The king was answerable only to God. To resist
him was impious.
A modification of the theory of the divine right of kings comes in as
the influence of the Papacy increases. Dante in his work _On Monarchy_
has stated the situation clearly, when he writes: “Therefore man had
need of two guides for his life, as he had a twofold end in life;
whereof one is the Supreme Pontiff, to lead mankind to eternal life,
according to the things revealed to us; and the other is the Emperor,
to guide mankind to happiness in the world, in accordance with the
teaching of philosophy.” But unfortunately these two fields of activity
overlapped each other, and it was not easy to say what the theoretical
and practical relation of these two supreme powers to each other was.
Pope Leo III had placed the crown on the head of Charlemagne in Rome
in the year 800. What the Pope had given in the name of the people of
the Roman world, he could take away, and at the death of an emperor,
the control of the empire returned to the hands of the Pope. The great
Pope, Hildebrand, in the eleventh century held firmly to this theory.
As the Carlyles have pointed out, he had a search made in the papal
archives and found what he believed to be convincing evidence of the
feudal dependence of the different kingdoms of Europe on the Roman See.
In the next century the great English scholar John of Salisbury writes
in his _Policraticus_: “the sword, the symbol of worldly power, the
prince receives from the hand of the Church.” Feudalism inculcated the
idea that each man owed allegiance to some one above him, the vassal
to his lord, the lord to the prince, the prince to the Emperor, and it
was only natural to complete the system by deriving the power of the
Emperor from the Pope, whose responsibility was to God. This conception
of the Pope as the ultimate source of authority throughout the world
with his seat in Rome continued the tradition of the unity of the
Roman Empire, which, as we shall soon see, was one of the most potent
influences at work throughout the Middle Ages. The history of medieval
political theory and practical politics in the Middle Ages turns
largely upon the conflict of these two doctrines, that the secular
ruler received his authority from the people or directly from God, or
that it came to him from the Pope, the vicegerent of God.
Bryce’s dictum that “every Monarchy becomes in practice an Oligarchy”
sums up the story of the Roman Empire. The Emperor could not in person
attend to all the business of the state. He had to organize the
government in departments, and delegate authority to the men whom he
put at the head of these departments. This was the plan, which, as
we noticed, Hadrian brought to completion in the organization of his
bureaucratic system, and we are not surprised to find in the _Codes_ of
Theodosius and Justinian abundant evidence of the unrestrained power
which this oligarchy exercised. Both the monarchies and the democracies
of today are adopting the Roman plan in the one form or the other. In
Germany and in certain other Continental countries before the World War
a highly organized bureaucratic system had been developed, while in the
United States we have temporary or permanent Federal commissions and
boards, like the Interstate Commerce Commission, the Coal Commission,
and the Railroad Labor Board, and many of the States have public
service commissions. All these have been added in late years to the
traditional bureaux and departments. “Government by commission” has
become a political catch-word, in some of our electoral campaigns, and
some of our political leaders fear that the intrusion of the Federal
or State government into the matters of everyday life and into local
affairs will restrain individual initiative and undermine the integrity
of local government. This result, at least, followed the development
of the paternal and bureaucratic system of Rome.
3. ON CONSTITUTIONS
While it cannot be said that the constitutional development of England
and of countries whose constitutions are like hers can be traced in
all respects to Rome, it may be said with truth that the growth and
character of their constitutions bear a strong resemblance to those of
Rome, and that writers and political leaders, especially from the time
of the French Revolution to our own day, have studied Roman political
institutions and have applied the lessons drawn from their study to
the political and constitutional questions of the day. In Rome under
the Republic the people when they expressed their wish in the assembly
were omnipotent, just as the decision of the English people voiced
in Parliament is final. As it is in England, so in Rome the latest
pronouncement of the popular will rendered null and void any previous
enactment or statute in conflict with it. Rome had no formal written
constitution any more than England has, but as in England such legal
documents as Magna Charta, the Habeas Corpus Act, and the Parliament
Act of 1911 are recognised as being more fundamental than the ordinary
statute, so in Rome under the Republic the Laws of the Twelve Tables,
the enactment that a citizen charged with a capital offence had the
right of appealing to the people, and the principle that a _lex_, or
action of the popular assembly, took precedence of a decree of the
senate, were so embedded in tradition that no measure could be passed
in violation of the principles underlying them. Under the Empire,
however, we find a document which, so far as it goes, resembles
somewhat a written constitution, viz., the “Law of Vespasian conferring
the imperium.”[13] In this document we have a comprehensive and
systematic recital of the fundamental rights, powers, and privileges of
the Emperor. As we have just seen, Rome and England have not defined
the functions of the several organs of the state and their relation to
one another in a single document, with which all statutes, judicial
decisions, and administrative acts must conform, to be valid, as the
United States, France, Switzerland and most other modern nations have
done. However, the laws, precedents, and customs which direct the
public life of England and directed that of Rome in a sense make up
their constitutions. Constitutions of this sort, as Bryce maintains in
his _Studies in History and Jurisprudence_, are flexible. They bend but
do not break under the temporary blasts of popular passion or emotion.
They have grown up with the people and are part of the fibre of the
people. Going back, as they do, into the past, they have the mystery
and the dignity which antiquity gives them. The character of the Roman
and of the English constitutions reflect the character of the two
peoples and their likeness to each other. They bring out the practical
qualities of the two nations, their respect for the past, and their
ability to adapt their institutions to new conditions. One more point
of similarity between Roman and Anglo-Saxon fundamental laws lies in
the fact that both are concrete, and concern themselves little with
political doctrines. Both peoples drove straight at specific abuses,
without citing any principles of abstract right in justification of the
proposed reform.
In one respect Roman government differed fundamentally from that
of most modern states. The three functions of government which
Montesquieu clearly recognized, the executive, legislative, and
judicial, were not assigned to three different classes of officials
with as much care as they are today. Of course this lack of
differentiation is more noticeable in the early period than it is
in the later, but it persists even into the Empire. The Senate, for
instance, under the Empire not only legislated, but it nominally had
the right to elect the Emperor and the magistrates, and also sat as a
court to hear political charges made against members of the senatorial
order. Although the threefold division of governmental powers was
observed then only in part in the actual organization of the Roman
state, it was recognized by Aristotle and by Cicero in their works on
politics. The Greco-Roman doctrine on this subject was reaffirmed by
Bodin and Locke, as Garner has pointed out in his _Introduction to
Political Science_, before it was set forth as a fundamental principle
of political organization in the _Spirit of the Laws_. The teachings of
Montesquieu on this point became a part of the political philosophy of
the French Revolution. In England Blackstone maintained, as Montesquieu
had done, that there could be no public liberty when the right of
making and enforcing the law was vested in the same man or the same
body of men, or when the judicial power was not separated from the
legislative and executive. The makers of the Constitution of the United
States were profoundly influenced by Montesquieu and Blackstone,
and probably no modern constitution exemplifies so well as does the
American constitution the threefold division of powers recognized by
Cicero. As the Supreme Court has said in one of its decisions: “It
is believed to be one of the chief merits of the American system of
written constitutional law that all powers entrusted to the government,
whether state or national, are divided into three grand departments,
the executive, the legislative and the judicial; that the functions
appropriate to each of these branches of government shall be vested
in a separate body of public servants, and that the perfection of
the system requires that the lines which separate and divide these
departments shall be broadly and clearly defined.”
If we should try to set down the valuable contributions which the
Romans have made to modern political theory, or the achievements of
the Romans which we may study with profit, or the political qualities
in them which we may imitate to advantage, or the important political
principles or institutions which we have inherited from them, we should
think of the doctrines of popular sovereignty, of the equality and
brotherhood of man, of the practical proof which they have given us of
the value of a flexible constitution, of their teachings concerning
the theory of the state, and of their introduction of the historical
method of studying political institutions. Of all these contributions
to modern civilization we have already spoken. We should also think of
their devotion to the state, of their regard for law and tradition, of
their wise opportunism which made their political thinking practical
and concrete, of their development of a marvellous body of civil law,
of their careful observance of the principle of local self-government,
with its acceptance of local institutions and practices, and of their
success in promoting law and order and a feeling of social solidarity,
in improving material conditions throughout the world, and in governing
and civilizing backward peoples. This is a long list, but in all these
respects the political acumen of the Romans was noteworthy, and their
achievements either lie at the basis of modern civilization, as we
shall see, or may furnish us guidance in our political development.
In our discussion of the different branches of the government, and of
various fields of political activity, we shall have occasion to take up
in detail many of these points which have not yet been mentioned.
4. THE LEGISLATIVE AND EXECUTIVE BRANCHES OF GOVERNMENT
_i._ RESEMBLANCES BETWEEN ANCIENT AND MODERN
It may be convenient at the outset to compare some of the
characteristics of the legislative branch of the Roman government with
those of modern parliaments. The Roman method of legislating was very
similar in its essential features to that followed by the states of
this Union which freely use the initiative and referendum.[14] These
two political devices come to us of course from Switzerland. One
or both of them in their present form may be traced to Rousseau’s
opposition to representative government and to his advocacy of the
doctrine of popular sovereignty. But traces of the referendum may be
found in certain Swiss cities long before Rousseau’s day, and the
legislative principle which underlies it may possibly be an inheritance
from Roman times, preserved through the Middle Ages in the independent
Italian cities. Where the referendum prevails, an elected assembly,
the Legislature in our states and the Greater Council in the Swiss
cantons, is set over against the whole body of citizens, voting in
this country in their home towns, or in Switzerland at some central
point. Either legislative organization may initiate legislation, and
in practice most proposals originate in the elected body, from which
important or controversial matters are referred to the people. Popular
action overrides that of the chosen body. The people may not amend
a proposal, but must vote “Yes” or “No” upon it. This is an exact
description of the relation of the Roman senate to the popular assembly
under the Republic. The ancient system had the merits and defects which
we see in its modern counterpart. The assembly of the people helped to
preserve the rights of the democracy and gave expression to popular
aspirations. The aristocratic body, being made up of experienced
politicians and administrative officials, was better qualified to
deal with technical questions and foreign affairs, and the relative
importance of the two legislative organizations varied from one period
to another according to the predominance of the one set of questions
or the other. Naturally the problems arising out of long-continued
wars increased the prestige of the Roman Senate, just as its exclusive
right to approve treaties of peace with the Central European States
has enhanced the authority of the American Senate at the expense
of the Lower House. We noticed above that a few important matters
were reserved to the Roman popular assembly. One of these was the
declaration of an offensive war. Now in the last two or three years in
casting about for some means to avert future wars, it has been proposed
to take the right of declaring war from the Congress and to submit the
question in each case to the people. This proposal has been made partly
in the belief that the people who must bear the brunt of a war will
lean toward peace. If we may draw an inference from the attitude of
the Roman people, this conclusion is unfounded. Professor Tenney Frank
in his _Roman Imperialism_ has shown that the great war with Pyrrhus,
the First Punic War, and perhaps the Jugurthine War were forced on Rome
by the democracy against the desire and the judgment of the Senate.
The Senate knew better than the people what sacrifices of blood and
treasure such wars would mean.[15]
In one of the chapters of his book on _Society and Politics in Ancient
Rome_ the present writer has attempted a comparison between the Roman
Senate and the Senate of the United States.[16] The Roman Senate was,
and our Senate is, engaged in a struggle with the executive and with
another legislative body more popular than itself for the control of
the state. The life terms of Roman senators and the comparatively long
terms of our own senators put them largely beyond the reach of popular
sentiment, and give them a feeling of security in their positions.
The long and honorable tradition of both bodies and their _esprit de
corps_ strengthen this sense of security. Roman senators showed for
one another the same senatorial courtesy which has become a byword
with us. An element of strength in both organizations is the absence,
as a rule, of clôture. A measure submitted by an executive may easily
be talked to death or amended so as to bear slight resemblance to the
original proposal, if there is little or no limitation on debate.
But two powers in particular, enjoyed by both bodies, would give any
legislative organization an excellent means of controlling public
policy and of directing the administration of public affairs. I mean
the right to confirm important appointments and to be consulted in the
settlement of foreign affairs. What a tremendous influence the Senate
of the United States can exert through its right to participate in
the management of foreign affairs we have seen illustrated within the
last few years, and, as we have noticed in Chapter I, the Roman Senate
held the same position of advantage. Just as our senators control in
large measure the appointment to important offices, so the Roman Senate
rewarded with lucrative posts in the provinces the politicians who
supported its policies, and punished leaders like Caesar who opposed
it, with provinces “of forests and marshes.” It may be added also that,
as has been observed in Chapter I, the Roman Senate was made up of
former administrative officials who were familiar from past experience
with the questions which came before it, and the Romans did not have
the two-party system, which strengthens the hands of a government in
Anglo-Saxon countries. It is not strange, therefore, that in course of
time the Roman Senate reduced the magistrate to the position of its
minister, and that its policy became his policy. As in most modern
countries, the members of the government attended the meetings of the
legislative body and voted in it. It is interesting to bear the fact
in mind that we have felt in the United States the unfortunate results
which arise in the making of laws from the lack of close coöperation
between the legislative and executive branches of our government, and
it has been proposed lately to adopt the Roman practice to the extent
of allowing members of the Cabinet to attend meetings of the Congress,
without giving them the right to vote.
_ii._ DIFFERENCES BETWEEN ANCIENT AND MODERN
We have been speaking of points of resemblance between the Roman Senate
and the Senate of the United States. Some striking points of difference
between its procedure and that of modern legislative chambers should be
mentioned. A member of our Senate or House of Representatives, if he
were summoned to a meeting of the Roman Senate, would be as astonished
at the lack of parliamentary machinery, as was the Connecticut Yankee
of Mark Twain’s story at the lack of labor-saving devices in the
court of King Arthur. He would find no fixed order of business, no
quorum ordinarily required, no committees to collect facts and make
recommendations, motions not put in writing, and no minutes kept. He
would be still more astounded to find three or four mutually exclusive
motions before the house at the same time, from which the presiding
officer was allowed to make his choice. Yet no legislative body has
left behind it such a marvellous record of business-like achievement as
the Roman Senate has. This fact may well lead us to ask the question
whether the elaborate procedure and the complicated parliamentary rules
which our legislative bodies follow are necessary for the expeditious
transaction of business. This is not to say that the Roman method could
be adopted out of hand today. That was a matter of growth, but it may
at least suggest that it would be possible and wise for us to simplify
our procedure. Many of the practices peculiar to the Roman Senate
may be explained out of its history. Although it is the most famous
legislative body known, in theory it was not a legislative body at all.
It was in its origin only the Advisory Council, or _consilium_, of the
chief magistrate. Its members were merely the experienced old men whose
advice the king, and later the consul, sought. When he needed counsel
he called them together, and asked their opinions, following naturally
the order of age and eminence. In its outward forms the circumstances
of its origin were never forgotten. The Senate never met unless the
magistrate called it together. The business of the day was laid before
it by the presiding officer. Its members were not expected to give
their opinions until he asked them, and the presiding officer who was
asking advice could naturally pick out the proposal which seemed to
him wisest and ask the judgment on it of the other members, and it was
the traditional practice to make these proposals orally.
Up to the time of Tiberius Gracchus, near the close of the second
century before Christ, Rome was under a parliamentary government,
not unlike the government of France or Italy in its essential
characteristics. Under the constitution of 1875, for instance,
the chief executive of France is brought under the control of the
legislative body, just as the Roman Consul was made subject to the
Senate. All his acts of every kind, to be valid, must be countersigned
by one of his ministers, and it is always within the power of the
Chamber of Deputies to overthrow a ministry. In the absence of the
two-party system in Rome, and the consequent lack of a compact party
organization to support the Government, the Roman system was also like
that which is common on the Continent. Of course the Roman system was
pure parliamentary government in a higher degree than is the system in
vogue in any modern state, because the internal and external policy of
Rome was not thought of as the policy of Catulus or Messalla, but as
that of the Senate, whereas today, with a certain measure of propriety,
we speak of the policy of a Briand or of a Giolitti.