modern legislative bodies lies in the fact that in the composition of
the ancient body the representative principle was not recognized. It
seems to us extraordinary that when, in her early career, Rome absorbed
neighboring Latin towns, and when, at the conclusion of the Social
War, she gave Roman citizenship to the cities of Italy, she did not
authorize them to elect representatives to the Senate. Instead of doing
so she required the people of these places to come to the city of Rome,
if they wished to vote. In view of this fact it is often said that
the Romans were not familiar with the representative system.[17] This
conclusion is, however, incorrect. Traces of the system may be found
among the Latins in the earliest times, in the sending of delegates
from the several towns to the Latin Games. Twice later in the fifth and
third centuries B.C., it was proposed in the Senate to allow Latins to
elect a certain number of the members to that body. The constitution
which the Italic State adopted in the Social War seems to have been
based on the representative idea, and the system which Aemilius Paullus
introduced into Macedonia in 168 B.C. was apparently a unicameral,
representative government. The Romans then were not ignorant of the
principle of representative government, but they did not adopt the
system for Italy and the empire because, by doing so, Rome would have
lost her exclusive rights, the balance of power would have passed
from the Latins, and in course of time provincial members of the
Senate would have outnumbered even the Italians. The lack of elected
provincial representatives in the Senate was made up in some measure
under the empire by the readiness which the emperor showed to listen
to the requests and complaints of individuals and cities all over the
world, and by the establishment of provincial assemblies, called Κοινά
in the East and _concilia_ in the West. When the Romans acquired Greece
and Asia they found that neighboring cities in these two regions had
already formed religious organizations or political federations. One
of these organizations, the assembly of Asia, toward the close of
the first century B.C. asked permission to establish the cult of Rome
and Augustus. This request was granted, and within the next century
provincial assemblies were introduced into most of the provinces of
the East and West, primarily to conduct the services of the imperial
cult and to celebrate games in honor of the deified emperor. But when
the representatives of the several cities of a province met in their
annual assembly, it was natural for them to discuss provincial affairs
of general interest, and in particular to consider the conduct of
the governor and the members of his staff. They never acquired the
right to legislate for a province, but they exercised rather freely
the right to call the attention of the governor and the emperor to
conditions in the province, and in the late empire it seems to be clear
from the _Theodosian Code_ that they discussed questions of taxation,
the public post, and cases of extortion by imperial officials. The
members of these assemblies seem to have been true representatives
of their respective cities, and not delegates with a mandate, and
in one province, at least, Lycia, they were chosen by a system of
proportionate representation. The Councils of the Church were the
natural successors of the provincial assemblies. Like the assemblies
they were concerned primarily with religious matters. The Provincial
Council, meeting under the direction of the Metropolitan, was made up
usually of the bishops of the province, but not infrequently we find
presbyters, deacons, and laymen present, sent by their respective
cities, and from the close of the fifth century, they, as well as the
bishops, often vote. Marsiglio of Padua in the thirteenth century
went so far as to assert that a General Council should be strictly
representative of both clergy and laity, and that a province should
have representatives according “to the number and quality” of its
inhabitants, and in the following century Occam worked out a complete
plan of representation for a Council. It has been suggested by Dunning
in his _History of Political Theories_ that Marsiglio may have based
his proposal on the system which he found in some of the medieval
Italian cities. If that hypothesis is correct, we have a double line of
descent in the later period, at least, for the representative idea. It
matters little that the political powers of the provincial assemblies
were limited, or that the bishops were the controlling element in the
Councils of the Church; the essential facts are that representative
government was well known to the Romans and that the representative
principle survived in the assemblies and in the Church Councils until
the Renaissance came to give it new life.
Probably no society has ever invented so many safeguards against
Caesarism as the Roman oligarchy did. As we have already noticed,
a candidate for a magistracy must have reached a specified age: he
must hold the offices in a fixed order, and an interval of time must
elapse before he can be re-elected to the highest office. His term
was a short one, and during it his actions were always subject to the
veto of his colleague. Another check upon him was furnished by the
recall. This very new political device is as old as the tribunate of
Tiberius Gracchus. It is an application of the doctrine of popular
sovereignty in its extreme form, and grew out of earlier attempts to
hold magistrates responsible for their conduct in office. The arguments
which Gracchus used in support of his proposal to recall his colleague,
Octavius, postulate the theory of popular sovereignty and sound
surprisingly like the considerations which are urged by the supporters
of the recall today. According to Plutarch, Gracchus said: “We esteem
him to be legally chosen tribune who is elected only by the majority
of votes; and is not therefore the same person much more lawfully
degraded, when by the general consent of them all, they agree to depose
him?” Perhaps we have not inherited the recall directly from antiquity,
but our acceptance of the Roman doctrine of popular sovereignty has led
logically to the development of the recall, as well as the initiative,
and the referendum.
One of the characteristic features of a Roman magistracy was the right
which an incumbent had to veto the action of a colleague; and the
tribune had the right, which he freely exercised, to veto the action
of any other official. In some respects the Romans used the veto power
in a more practical way than we do. Our governors, presidents, and
other chief executives may not interpose a veto until a measure has
been adopted and laid before them for their signature. Often they are
required to disapprove of long, important measures, which they would
gladly see adopted, were it not for some slight defect. Under Roman
practice a bill could be vetoed before action had been taken upon it,
or a tribune would ask for a night’s delay before action should be
taken. This arrangement gave proponents of a bill an opportunity to
change the objectionable features of it. In recent years various timid
excursions have been made into certain fields of political activity,
in which Roman magistrates exercised their power freely. We try to
influence the morals of people by exercising some supervision over the
stage and over the public press; and in time of war the government has
fixed the price of certain foods and attempted to provide for their
proper distribution. What the censor’s office did in its palmy days to
improve the morals of the people and to check extravagance and display
has been discussed in the last chapter, and in the aedile’s office the
Romans had a permanent Food Administration.
We have already observed that the political quality of the Romans which
made for progress and stability at the same time more than did any
other, was their ability to adapt old institutions to new conditions.
In the practice of assigning a board of experts to an official we have
an illustration of the way in which this result was accomplished.
Probably no people in antiquity used experts so freely, and perhaps
in modern times the practice is not so general as it was in Rome.
A magistrate was elected directly by the people each year. He was
better aware of the trend of popular sentiment than the average prime
minister. He could confidently be expected to advocate progress or
change. Attached to his office was a _consilium_, or body of expert
advisers, who were familiar with precedent and usage and who would hold
fast to the _mos maiorum_. In all departments of Roman public life such
boards of advisers are to be found. The king, and later the consul,
had the Senate as his _consilium_. The praetor, and, under the empire,
the emperor had their _consilia_ to assist them in the adjudication
of cases, and in the field of the state religion the chief pontiff
was advised by his board of pontiffs. The interaction of the forces
which these two elements represented resulted in the gradual reform of
old institutions, without too violent a break with law and tradition.
We may regard the imperial bureaux which Hadrian brought to a state
of perfection for the provinces as an extension of this system of
government by experts.
The Roman theory of the relation of the state and the church runs
through a cycle. The king was both chief executive and chief priest of
the people. When the republic was established, priestly and political
functions were dissociated, although all religious matters having a
political significance were left to the magistrate. Julius Caesar in
his dictatorship united in his person again the functions of the chief
magistrate and chief pontiff, and this precedent was followed by all
the emperors. The Emperor therefore held somewhat the same place in the
state religion as the Czar did in Russia before the Revolution, and as
the King does in England. This assumption of religious authority by the
political ruler was the first step toward the recognition of the Divine
Right of the Emperor; and the practice of paying divine honors to him,
which, as we have noticed in Chapter I, was introduced from the Orient,
fostered the development of the theory. In European countries the Roman
practice of uniting the spiritual and temporal powers has survived
in the form of a state religion or in the control of ecclesiastical
affairs which most states have assumed in some measure. The United
States, in enforcing a complete separation of State and Church,
stands almost alone among the Great Powers in not accepting the Roman
tradition.
One cannot bring to an end even a brief discussion of the influence
which the executive and legislative branches of the Roman government
have exerted on the political life of our own times without mentioning
the remarkable revival which we have seen lately in Italian Fascismo,
of the old Roman spirit and of certain Roman political institutions. In
its purpose, its spirit, and its external form this movement revives
pure Roman tradition. It began to attain its present great strength in
the months immediately following the Armistice when there was a marked
decline of national feeling and when disorder and class struggles
were rife throughout Italy. It assumed the form of a great national
movement when it broke the general strike of August 1, 1922, which
threatened the orderly life of the whole nation. The Fascisti took this
step after the government had failed to set the wheels of industry
in motion again. The next step, the setting aside of parliamentary
government and the assumption of the dictatorship by Signor Mussolini,
the leader of the Fascisti, was inevitable. The whole course of events
during the last six months of 1922 duplicates incidents common enough
in early Roman history. Disorder arises throughout the peninsula or a
great danger confronts the state. The ordinary methods of government
are suspended, and a dictator is appointed to meet the emergency.
The dictator in the olden time called the citizens to arms, just as
Signor Mussolini assembled his one hundred and seventeen thousand
armed followers at the Villa Borghese in the autumn of 1922. These
men of today show the same spirit of unquestioning obedience to the
state which characterized the Roman in olden time. One may well think
himself back in the third century B. C., listening to the ancient
Roman soldiers gathered before their dictator, when he reads the
oath which the assembled Fascisti took in Rome on January 1, 1923:
“I swear loyalty to Benito Mussolini, who governs the destinies of
Italy. I swear devoted and absolute obedience to his government with
uncontrolled conscience, which involves also the supreme sacrifice
of life, the renunciation of all personal initiative, and the daily
practice of iron discipline.” That this movement was directly inspired
by Roman tradition is made plain by the symbols and forms which it
takes. It gets its name from the _fasces_, or bundle of rods, which
the lictor carried, as a symbol of the authority of the state, and the
Fascista army is organized like the old Roman army into _manipuli_,
_centuriae_, _cohortes_, and _legiones_.[18]
Who can say what this reawakening of the old Roman spirit may mean for
Italy? It has already given rise to a new _Risorgimento_. It was the
cause of Italy’s participation in the War and was the result of that
War. Italy bore her part of the burden of the War with the other great
Powers of Europe. She has freed herself from the economic domination
of Germany and from the threat of Austrian invasion. Her “Unredeemed
Lands” are restored to her. Her control of the Adriatic seems
assured. Out of these achievements surged up the feeling of national
independence and solidarity embodied in the Fascista organization,
which numbers now several hundred thousand young men, and at the same
time it was the Fasci or patriotic groups, which came into existence
in the early years of the war, that made these achievements possible.
The organization has set a bad precedent in its use of violent methods,
and in establishing a military force outside the state. In its dealings
with other peoples it may assert national ambitions too vigorously, but
it bids fair to give expression to the national genius and to inspire
Italy with a new life and vigor.
5. THE JUDICIARY
If one passes from the legislative and executive branches of the
Roman government to the judicial, he thinks at once of Roman law, the
greatest legacy which Rome has left us. With that subject we are not
concerned in this book. But the judicial machinery of the Romans and
some phases of their court procedure are of lively interest to one
who is comparing Roman and modern institutions. Of most importance to
us in this connection are the methods which the Romans followed in
dealing with _crimina publica_, with what we may roughly, but somewhat
inexactly, call criminal cases. For the hearing of such cases, by
the early part of the first century before our era, the Romans had
established eight or nine courts under the presidency of praetors and
ex-aediles.[19] The competence of these several courts was essentially
different from that of our courts and may well lead us to ask ourselves
if our system makes for efficiency. One Roman court, for instance,
confined itself to hearing cases of magistrates charged with extortion.
Others heard respectively only cases of forgery, or of treason, or of
corrupt practices at elections, or of peculation in office. Under this
system each court was peculiarly qualified from long experience to deal
with the class of cases which came before it. Under our practice today
where cases of different sorts come before the same judge, such special
competence as the Roman praetor and his board of trained jurists
attained can hardly be gained. The praetor’s court continued to about
the third century. Under the later empire criminal cases were heard
in Italy by the city prefect or the praetorian prefect, and in the
provinces by the governor.
The juries which sat with the praetor in hearing criminal cases were
much larger than ours. The smallest one of which we have any record
numbered thirty-two. A case was decided, as it is in most Continental
countries today, by a majority vote of the jurors. As used to be the
practice in the Scottish courts, the Roman juror could vote that a
charge was “not proven,” but probably in the later period such ballots
were counted for acquittal. The last extant reference to juries in
Roman times is from the second century after Christ. This fact has led
some modern writers to take it for granted that there is no connection
between the Roman jury system and the modern one. Before medieval
life had been studied carefully, this was a natural conclusion. Its
character was not well understood, and Roman institutions were so
modified in the Middle Ages that they were not easily recognized in
their later forms. It is also true that, until very recent times, many
who studied the origins of modern institutions did not raise their eyes
above the modern horizon, or were led by national pride to find those
origins among the peoples of their respective countries. This state of
things is true, not only of the jury system, but in the case of other
modern institutions, yet a more thorough and impartial historical
investigation is giving to the Romans the credit which is due to them.
We can do no more here than indicate very briefly the links which
connect the modern jury system with the ancient one. The character of
that system was indicated in the _Code_ of Theodosius. Much of this
_Code_ was adopted in the _Breviary_ of Alaric in 506 A.D. and in other
summaries based in part on the Roman law, such as the _Capitularies_ of
the Merovingian and Carolingian kings. It is therefore a significant
fact that under the Merovingians justice was administered by the Count,
but on the verdict of the notables, called in the texts _rachimburgii_
or _boni homines_. These _boni homines_ were chosen by the Count, or
judge, at the beginning of the hearing from the freemen assembled in
the court. The minimum number chosen was seven. Feudalism put an end
to the jury in France, and in its place cases were tried by ordeal,
by battle, or by compurgation on the Continent. At this point two or
three facts in the historical sequence are noteworthy. Our collection
of the _Capitularies_ was made in 827. Within a century the Normans
made themselves masters of North Western France. They readily adopted
French usages, and it is a fact admitted on all sides, since Palgrave’s
great work appeared a century ago, that the beginnings of the English
jury system were brought into England by the Normans in the form of an
inquest by sworn recognition. At first this method of deciding cases
was accepted only as an alternative mode of trial. Twelve knights were
selected who were required to declare on oath which contestant in their
opinion had the better right. The Continental countries took over the
jury from England after 1789. We are not concerned here with the many
complex questions which arise in attempting to explain the development
of the grand jury and the petty jury on English soil. The outstanding
fact is that we owe the judge-and-jury system to the Romans.
One of the most extraordinary features of their judicial system was the
fact that the Romans had no permanent public prosecutor. The bringing
of criminal actions under the republic was left to private initiative,
but there seem to have been enough ambitious politicians to prosecute
cases, at least those cases which were likely to bring distinction to
the successful prosecutor. Indeed on some occasions the praetor, before
beginning a trial, was obliged to give a preliminary hearing to several
lawyers who claimed the distinction of bringing the charge against the
accused party. The merits and defects of such a system are obvious.
Charges were likely to be pushed with vigor, because the reputation
of an advocate depended on securing a conviction, and sometimes a
patriotic citizen prosecuted a powerful politician when a public
prosecutor would have hesitated to do so. But on the whole the plan
did not work well. This was especially true when there was a political
element in the case. In such circumstances the charge was usually
brought by a political opponent, or what was worse still, a political
supporter might put the defendant on trial and secure an acquittal,
before a real prosecution could take place. Before being allowed to
undertake the prosecution of Verres, the venal and tyrannical governor
of Sicily, Cicero had to convince the presiding praetor that his
claim to the right of conducting the case was better than that of
Quintus Caecilius Niger, who had been quaestor of Verres, and hoped to
secure the acquittal of his former superior. Such cases of collusion
between the prosecutor and the defendant became so common, that a
heavy penalty was imposed on those found guilty of it. Even under the
empire, when the senate began to hear certain important cases, there
was no permanent public prosecutor, but the senate designated members
of its own body to conduct the prosecution and the defence. In these
trials the senate functioned as a jury, and the presiding consul, as a
judge. As the emperor gained a greater control of public affairs, it
was not unnatural that he should take over criminal jurisdiction in
important cases or delegate it to his prefects. When this point was
reached, probably the prosecution of criminal actions was assumed more
definitely by the state.
We frequently introduce “character witnesses” in our trials. The Romans
went still further. A Roman defendant brought with him to the court as
many prominent friends (_advocati_) as he could to make a favorable
impression on the jury. In important cases today in America, although
attorneys for the prosecution and defence sometimes give the jury brief
outlines of the case before the evidence is presented, their formal
pleas are not made until the evidence is in. Our method is inductive.
Formal pleas were usually made in a Roman court before the testimony
was given. Much can be said for the Roman plan. Having the analyses
of the case, as presented by the prosecution and defence, clearly in
mind, the average juryman is perhaps better qualified to decide which
theory is made more probable by the facts in the case and is in a
better position to pick out the salient facts than he is when dealing
with heterogeneous bits of evidence. The same looseness of procedure
which characterized the meetings of the Roman Senate is found in the
courts.[20] The jury was not under careful surveillance; demonstrations
of approval and disapproval occurred, violent discussions were not
always stopped, the rules of evidence were less strict than they are
with us, and technicalities played a less important part. In some of
these particulars Continental courts have inherited Roman practices
more fully than Anglo-Saxon courts have. In consequence of their
elimination of technicalities, the Romans brought important criminal
cases to an end much more quickly than we do, and justice was cheaper
than it is with us. In Anglo-Saxon courts hearsay evidence, the
opinions of witnesses, and facts irrelevant to the issue are excluded
by the presiding judge. These rules of evidence were not applied in
Roman courts, and when the Continental countries reintroduced the jury
system, they went back to the Roman practices in this matter, as we
noticed a few years ago in the famous trial at Viterbo.
6. CONCEPTION OF CITIZENSHIP
_i._ IN TIMES OF PEACE