As Pollock has put it in his _Introduction to the History of the

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.

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