THE CLASSES OF THE POPULATION AND THE THEORY OF THE CONSTITUTION IN THE
DEVELOPED REPUBLIC
§ 1. _The Classes of the Population_
By the date of the _lex Hortensia_ (287 B.C.) the Republican constitution
had, in all essential points (considered as the constitution of a
city-state), completed its growth; but, before we proceed to examine the
theory and practice of the developed polity, it is necessary to pause
and inquire what changes these centuries of Republican development had
made in the status of the citizen, and in that of the other classes of
the city, who shared partially in, or were excluded from, his rights, and
what modifications had been undergone by the few main legal rules which
mark the outline of their social environment.
The merging of Patricians and Plebeians into one community created the
necessity for a universal conception of citizenship applicable to the
whole body which possessed active political rights, while the growing
practice of granting partial civic rights to the members of certain
Italian communities led to the distinction between the fully-privileged
and the partially-privileged citizen. The former is the _civis optimo
jure_, the latter the _civis non optimo jure_. It is only of the former
that we shall speak here; the consideration of the latter will be more
appropriately deferred to that portion of our work which treats of the
Italian confederation.
The normal mode of the acquisition of citizenship was naturally birth,
either from two citizens or from a citizen and a foreigner. The question
of the necessity of the marriage of the parents for the full citizenship
of the children we shall soon consider; the primary question that
presents itself to a nation is that of the allegiance of the child who
is the product of a citizen and a foreigner. In such a case the older
principle of Roman law (an instance probably of a universal principle
of Italian law) was that, where _conubium_ existed between the parents,
the children followed the status of the father; where _conubium_ did
not exist, nature dictated that they should follow the condition of the
mother.[509] But an arbitrary exception to this principle was made at
an unknown date in Roman law by a _lex Minicia_ which enacted that, in
case of unions without _conubium_ between a Roman and a foreigner, the
children should follow the status of the less privileged parent; the
child of a _civis Romana_ by a _peregrinus_ was, therefore, himself a
_peregrinus_.
The exceptional modes by which citizens were created were (i.)
state-conferment of the _civitas_ on _peregrini_ or of full _civitas_ on
_cives non optimo jure_, and (ii.) the manumission of slaves.
(i.) State-conferment of the _civitas_ was only an exceptional measure in
so far as it required a special legislative act.[510] The extraordinary
liberality of Rome in this respect, never equalled in the life of the
ancient city-state—a liberality which spread the name of Roman citizen
first over Italy and then over the greater part of the civilised
globe—was not an outcome of any suddenly adopted policy, but persisted
from the birth of the city[511] to the world-embracing edict of Caracalla
(212 A.D.). A few figures are sufficient to represent the extent of
the increase effected by this means. The male citizens who appeared on
the census rolls were, at the close of the first Punic war (240 B.C.),
260,000; in 124 they had risen to 394,726; in 85, after the incorporation
of the greater part of Italy, to 963,000.[512] Under Augustus (28 and 8
B.C. and 14 A.D.) the figures were 4,063,000, 4,233,000, and 4,937,000;
and the census of Claudius (47 A.D.) gave a return of 5,984,072 _civium
capita_.[513]
This gift of citizenship was, in the Republic, conferred exclusively by
a decree of the people (_jussu populi_). Such decrees might be either
of a standing or a particular character; they might confer the gift
immediately on the recipients or through intermediary delegates. Standing
rules are mainly such as governed the condition of the dependencies
of Rome. We shall find that the rights of Latin colonies provided
facilities for the attainment of citizenship; the criminal laws sometimes
gave a foreigner the gift of _civitas_ as a reward for successful
prosecution;[514] and, after the fall of the Republic, the enlistment of
legionaries from the provinces was one of the most fertile sources from
which the citizen body was recruited. Particular conferments, if not made
directly by the people, might be effected through the Senate acting as
its delegate,[515] or through commissioners charged with the founding of
colonies. These were generally the specially-appointed _IIIviri coloniae
deducendae_; and in all such cases of delegation the power was conferred
by a _lex_.[516] In the last century of the Republic we find the custom
growing up of permitting by special enactment such powers to generals in
the field. Marius in the Cimbric war had the gift of citizenship in his
hands, and a _lex Cornelia Gellia_ granted a similar power to Pompeius
during his Spanish campaigns.[517] This was the stepping stone to the
right possessed by the sole commander-in-chief, the Princeps, to confer
the citizenship at his pleasure.
(ii.) Any perfectly valid form of manumission conferred citizenship on
slaves. Every form was undertaken at the initiative of the master, but
for it to be perfectly sound (_manumissio justa_)[518] he must observe
certain rules of law. The most usual form was the _manumissio vindicta_.
It was one of the many fictitious forms of the old capture of property
(_vindicatio_), the primitive Roman method of recovery. A man of straw,
called the _adsertor in libertatem_, appeared before any magistrate, who
could claim the conduct of the _legis actio_[519] declared the slave to
be free, and touched his head with a staff (_vindicta_).[520] The master
yielded, and this cession of his rights (_in jure cessio_) was followed
by the declaration of the magistrate that the slave was free.[521]
The second form was the enrolment on the register of citizens by the
censor, when the census was in progress, at the request of the master
(_manumissio censu_). It was the false declaration of the master that the
man was free which gave validity to this form.[522]
The third and later form was manumission by testament (_manumissio
testamento_), by which the master either commanded the freedom of the
slave in his will, or left it as a trust to his heir.[523]
The comparative inconvenience of these forms had led to other simpler
modes of manumission—by announcement of the freedom before friends
(_inter amicos_), or through a letter to the slave bidding him live as a
freeman (_per epistolam_), or even by inviting him to dine as a freeman
at his master’s table (_per mensam_).[524] Manumission effected in this
informal way, though protected by the civil courts, did not confer the
political rights of citizenship.
The citizen who was made such by manumission was a _libertinus_; all
others were, at the close of the Republic, free-born (_ingenui_). The
distinction conferred by _ingenuitas_ was, as we shall see, an important
one, since this condition was a requisite for the army, the magistracy,
and the higher orders (_ordines_) of the state. But the conception of
“free birth,” though a simple one at the end of the Republic, is one that
has had a history, and _ingenuitas_ did not at all times bear the same
meaning. At the end of the fourth century B.C. an _ingenuus_ was one who
was sprung, not merely from free but from free-born ancestors, for the
term _libertinus_—always its antithesis—was used to cover, not merely the
manumitted slave, but his descendant in the first degree.[525] Before
the close of the Republic the son of a freedman or of a freed-woman was
_ingenuus_, the only condition being “birth in a state of freedom.”[526]
The status of the mother alone was taken into consideration, that of the
father being neglected, and the condition of marriage, which could not be
taken into account if one of the parents was unfree, was necessarily not
required.
Legal marriage must in early times have been a condition of _ingenuitas_
in the plebeian, as it certainly was in the ancient patrician community.
But before the close of the Republic this condition too was disregarded,
and illegitimate children (_spurii filii_) were placed on a level, as
regards honours and offices, with those born from wedlock.[527] It was
one of the many triumphs of the law of nature over the law of the state.
The rights (_jura_) of the citizen in the developed Republic were
those which we have enumerated as belonging to the free Plebeian of
the monarchy,[528] with most of the exclusively patrician privileges
added. They included the rights of marriage and of commerce, with their
consequences, the _patria potestas_ and the right of making testaments,
and in addition, the power of occupying domain land and the rights
of suffrage and of office. The Patricians still possessed some minor
privileges,[529] and the old theory was still upheld which reserved
the _auspicia_ for the _patres_. But, with Plebeians in possession of
the _imperium_, this doctrine was maintained by the fiction which gave
the occupant of a “popular” and, as it still continued to be called,
“patrician” magistracy the patrician _auspicatio_.
The duties of the citizen are certain services which he owes to the
state, which are paid either by his personal labour or by his property.
The name for these duties (_moenera_, _munera_, connected with _munire_,
to “fortify”) shows that they were connected with the military defence
of the city. Originally most of such burdens were probably defrayed by
the personal labour of the citizens.[530] Even the financial burdens
which afterwards pressed on property (_munera patrimonii_) were largely
defrayed by their enforced toil (_operae_).[531] In the municipal
legislation of the close of the Republic we find the services of the
citizens demanded for imposts such as the repair of roads and walls
(_munitio_), which are in modern times covered by rates.[532] But the
_tributum_, at whatever time it was first imposed, came to satisfy most
of the necessities formerly met by this enforced labour. Other public
needs were, in the Republic, met by contracts concluded by the censor, of
which we shall speak in connexion with that office. A clear distinction
could now be drawn between the great burden on property—the tribute—and
the great burden on the person—military service.[533]
The tribute was, from the time of the Servian census, imposed on the
property which formed the basis of the _classes_—originally, therefore,
on _res mancipi_;[534] later it was levied on all property and was paid
by all registered citizens who were _sui juris_, the aes _hordearium_ and
_equestre_ for the support of the knights being still paid by children
and women who were also _sui juris_.[535] The lowest property taxed
was, as we have seen, one of 1500 asses.[536] The taxation was not,
however, like military service, graduated according to the _classes_,
but was collected uniformly, usually at a rate of one _as_ in the 1000
(⅒ per cent). The tribute was an extraordinary tax and was imposed, like
military service, only when the necessities of the state demanded it,
practically when there was no reserve fund in the _aerarium_. The state
regarded it as a loan rather than as its due, and sometimes considered
itself bound, when its finances were more flourishing, to return the
money to the contributors.[537] The vast revenues accruing to the state
as a result of the third Macedonian war in 167 B.C. caused the cessation
of the tribute,[538] and no further direct tax was collected at Rome
until at the end of the third century A.D. it was reimposed by Diocletian
and Maximian. Tribute was, indeed, inconsistent with Rome’s imperial
position. It had been meant to defray the cost of the legions, but, with
the creation of the empire, each province defrayed the expenses of its
own military occupation.
Service in the legions (_militia_) was in theory a burden; exemptions
from it were occasionally granted as though it were a troublesome
duty,[539] and the citizen who did not present himself for the
conscription was sold as a slave[540] across the Tiber.[541] But the
treatment of the levy and the feeling of the citizens raised this burden
(_munus_) into a privilege (_honor_); it was for this reason that free
birth was always required as a qualification for a legionary, and that
the ranks were never tainted by the admission of men of servile blood.
The Servian census was still the scale by which military service was
measured, both in the _legio_ and in the select corps of citizen cavalry
(_equites_). The legal duration of service throughout the greater part
of the Republic was sixteen, or at the most twenty yearly campaigns
(_stipendia_) for the foot soldier, and ten campaigns for the knight.
The performance of the _munera_ of tribute and military service required
a third duty, which was the condition of both. This was the presence
of the citizen who was _sui juris_ at the census for the purpose of
registration. All who neglected this duty (the _incensi_) could be sold
as slaves across the Tiber.[542]
The concepts of the individual as the subject of rights, of their tenure
and of their infringement, gave rise to a gradually developed theory of
the _jura_ with which the citizen was invested, and the mode in which
they might be lost, which plays a large part in the speculations of
the jurists. It attached itself to the primitive idea of a _capitis
deminutio_, the lessening of status caused by the loss of family
rights.[543] Gradually jurisprudence evolved the idea of a _caput_ or
personality possessed by every individual independent of citizenship, an
idea running parallel with the conception of a law of the civilised world
(_jus gentium_) independent of the _jus civile_. From this point of view
loss of _citizenship_ could be spoken of as a _capitis deminutio_. There
was besides an infringement of personality greater even than the loss of
citizenship of which the natural man might be the victim. This was the
loss of freedom. These two great derogations of _caput_ were spoken of as
_magna capitis deminutio_;[544] but finally a more precise classification
gave the following three grades of loss of status:[545]—
(i.) _Capitis deminutio maxima_ was the loss of _civitas_ and _libertas_,
consequent on a man’s becoming a prisoner of the enemy. With the loss
of freedom, political and therefore private rights[546] ceased _ipso
jure_ to exist. The obligations of international law might also produce
this condition; the Roman general who concluded a treaty with the enemy,
which the people would not accept, was handed over as a scapegoat for the
broken faith of the community[547] (_deditus_), and similar treatment
was meted out to one who had violated the sanctity of envoys,[548] or
to a general who had made war with a state in alliance with Rome.[549]
This loss of status was also produced by the civil law, in so far as it
enjoined slavery as a penal measure—e.g. in the case of the _incensi_ or
of those who shirked military service[550]—or permitted the sale of the
debtor or of the child into a foreign land.[551]
(ii.) _Capitis deminutio media_ (or _minor_[552]) was the loss of
_civitas_ alone.
This might be voluntarily incurred by the assumption of the citizenship
of another town, for the principle of the older Roman law was that a man
might not be a member of two independent communities.[553] The exile
from Rome which followed condemnation for a criminal offence was of
this type of rejection of citizenship, for the exile was always assumed
to be a voluntary act. Enforced abstention from the Roman _civitas_,
which necessitated a continuance in exile, was produced by the decree of
outlawry (_aquae et ignis interdictio_)[554] often passed by the people
against an individual who was in voluntary banishment for a crime.
(iii.) _Capitis deminutio minima_—originally a loss of family rights—was
improperly construed by the later jurists as a change of family
status.[555] Its applications have been already considered.[556]
There were means of recovering the status lost in either of these
three modes. The loss of _familia_ in its original sense[557] might
be recovered by emancipation; the loss of _civitas_, if enforced by
the state, by a special act repealing this disability (the _restitutio
in integrum_ of the criminal law). _Libertas_ could be regained by
the exercise of a right known as the _jus postliminii_. The return,
unintentional or premeditated, of the captive within the limits of his
own country destroyed the state of bondage, and restored the _ingenuitas_
and the rights of the former prisoner. Although described as a legal
fiction[558] it was a direct consequence of the simple principle that a
Roman could not be enslaved on Roman soil.
The Roman family had been subjected to many modifications since we
last considered it.[559] The _patria potestas_, indeed, existed in
all its old rigour, and the power of life and death over the children
still found occasional expression; but the unity of the family had been
largely dissolved by the laxity of the marriage tie. A modification of
the _usus_ marriage had come into vogue, which recognised the consent
of the parties, without the prescriptive tenure by which the _potestas_
was asserted, as the only bond—one, therefore, dissoluble at any moment
by rejection on the part of the husband or by mutual consent. The
wife remained a member of her father’s _familia_, and if she was _sui
juris_, retained her own property; for the tutelage of women was out of
accordance with the spirit of the age, and, though not abolished, was
evaded by cunningly contrived legal fictions.[560] Never, perhaps, have
women been freer from social trammels and legal bonds than they were in
the last century and a half of the Republic, and one of the features
of their independence was an indirect, but very powerful, influence on
politics.
But the greatest change in Roman society was due to the growth of a slave
population, which, in the city and that part of Italy which formed the
Roman domain, reduced the free citizens to a minority.
The rules of the _jus gentium_—which in this instance, as in many others,
is pure international law—permitted the captive to be enslaved until such
time as he set foot again in his native land, if this country of his were
an independent state.[561] This principle, applied to the victorious
wars of Rome, had flooded Italy with specimens of various nationalities
which were applied to various uses. These prisoners of war were, as a
rule, immediately transferred from the ownership of the state to that of
private individuals. They were sold by the quaestors,[562] often in the
camp,[563] and the slave-dealer tracked the footsteps of a successful
general.[564] War alone might have provided all that were needed for the
most luxurious community, if we may judge from the result of the second
conquest of Macedon, which swept 150,000 Epirot captives into Italy,[565]
and from the consequences of the campaigns of Caesar and Lucullus. But it
was supplemented by a brisk slave trade, which after the fall of Corinth
and Carthage (146 B.C.) centred at Delos, and which at the close of
the Republic had reached such dimensions that, during the reign of the
Cilician pirates, 10,000 slaves are said to have been imported and sold
there in the course of a single day.[566] It was chiefly from the latter
source that the versatile natives of the East were brought, Phrygians,
Mysians, Lydians, Lycians, Paphlagonians, the Hellenised members of the
“nations born to slavery,” who, while professing to interpret, often
guided and controlled, the wills of their slower Roman masters.
Their use was twofold; they were either labourers in the workshop and the
field, or domestic members of the villa or the palace, and their presence
in either capacity was fraught with important political consequences
for Rome. Their cultivation of the mechanical arts and crafts made the
Roman noble’s household self-sufficient[567] and the competition of the
free artisan almost a hopeless task. In the country they were gradually
replacing both the free labourer and the yeoman farmer. The advantage of
cheap labour, which could not be snatched from the master’s hands by the
needs of distant wars, was at an early period recognised by the nobles
in the cultivation of their vast estates.[568] After the acquisition of
the province of Sicily, which supplied cheap food to Rome, slave labour
on the large estates became an economic necessity; for it was the only
condition on which corn could now be productively grown. The lot of the
plantation slave, unknown to his master and exposed to the mercies of
the overseer, was a shameful parody of the earlier domestic servitude.
Yet the state did nothing. The slave possessed no rights, as in the time
when he, perhaps, required none. In the case of domestic slavery, the
moral influence of an intellectually superior race was often an adequate
substitute for the absence of rights, and a further _solatium_ was found
in the door of emancipation which was ever open to the favourite. The
Roman was not ungrateful, and he recognised that it was the slave who
made him an individual power in the world. The unequalled administrative
capacity of men like C. Gracchus, Crassus, Caesar, and Pompeius, which
has found no parallel in the modern world, was largely due to their
absolute command of men of perhaps less originative power, but often of
greater capacity for combination and detail than they.
Usefulness to the master was in fact the end to which the changes in the
law relating to servitude were directed. The slave might benefit his lord
by a contract entered into with a third party, but could not make his
condition worse.[569] The _dominus_ could sue on the contract, although
the slave having no legal personality could conclude only a natural
obligation (_naturalis obligatio_), but he was not liable for the losses.
To protect third parties, however, and to give the necessary legal credit
to this useful agency, the praetor gradually established a series of
quasi-liabilities for the master, which were really in his interest;
for without them slave-agency would have become impossible. Thus, if
the master had countenanced the slave’s contract, he was liable (_actio
quod jussu_); if the slave had embarked his _peculium_ in trade with the
master’s knowledge, this property, though in strict law not his own,
could be claimed by the creditors, after the slave’s debts to the master
had been deducted (_actio tributoria_). Finally, any liability incurred
by the _peculium_ could be recovered by creditors, the master’s right of
deducting his own claims against it being preserved (_actio de peculio_),
and any material advantage derived by the master from the contract of
a slave was taken into consideration and the property of the _dominus_
made liable to that extent (_actio de in rem verso_).[570] The slave, in
fact, as having no personality of his own, is the best of agents, and the
theory of agency, which the law of Rome has bequeathed to us, is one of
the most perfect and permanent results of her system of slavery.
Apart from these relations to his master the slave was still ignored by
law. He could not give evidence in court except under torture.[571] In
case wrongs were done him, it was not he but his master that demanded
reparation;[572] while his lord himself was the judge of the delicts
which he had committed against himself or the household.[573] That for
crimes against others the slave was tried by the ordinary process of
criminal law was a concession to society rather than to the wrongdoer,
and the sense of insecurity of the free population amidst their far more
numerous dependants was expressed in the atrocious law that the murder
of a Roman in his own house should be avenged by the death of the whole
_familia_ that were sleeping beneath the roof at the moment of the
commission of the crime.[574]
The state itself owned slaves who were known as _servi publici_. Some
were in the service of temples or of colleges of priests. Others were at
the disposal of magistrates, such as the censors or aediles,[575] for
the minor duties of attendance and police. Their agency in contracts
was doubtless as useful to the state as that of private slaves was to
individuals. Such an agent (_actor publicus_) was kept by the treasury
for the acquisition of property,[576] which, as his _peculium_, fell
under the _dominium_ of the state.
We have seen that manumission in due form made a citizen of a slave. The
_libertini_, therefore, are not a third class in the state, and only
demand a separate treatment in so far as their grant of freedom was
conditioned by the performance of certain duties to their former masters,
and in so far as the lack of free birth (_ingenuitas_) entailed certain
political disabilities.
The relation of the _libertus_[577] to his former master, who now became
his _patronus_, was to some extent modelled on that of the ancient client
to his lord. The freedman owed his manumitter reverence and obedience
(_obsequium_);[578] he could not prosecute, or appear as a witness
against him, in the criminal courts,[579] and he required the permission
of the praetor to bring even a civil action against his former master or
that master’s near relatives.[580] The patron’s right of succession to
the freedman’s estate if he died intestate and without heirs,[581] if
it was not a family right, was justified by the fact that the capital
with which the freedman started life must have been generally the gift
of the master, whether it took the form of a _peculium_ or not. This
circumstance must have been also felt to justify manumission on the
condition of continuing to perform certain services to the _dominus_.
But the privilege of imposing such conditions was abused, and had to
be limited by the edict of a praetor Rutilius,[582] which practically
confined them to the performance of certain personal services
(_operae_). The fact that the freedman was still regarded as an appendage
of the _familia_ was most clearly shown by the criminal jurisdiction—even
extending to capital punishment—exercised over him by the head of the
family even at the close of the Republic.[583]
The political position of the _libertini_ was probably better at the
beginning than at the end of the Republic. Under the Servian _régime_
they were, with all other citizens, members of the tribes; whether they
were at first members of the centuries depends on the question whether
free birth was always a requisite for military service, and this is a
point on which evidence entirely fails us;[584] but when the _comitia
centuriata_ had ceased to be a military and become a purely political
institution, there is no reason to assume their exclusion. They would
have been members of the _comitia tributa_ and _concilium plebis_ from
the earliest institution of these two bodies. The freedmen (rarely
landowners and usually mechanics) belonged in the main to the four old
city tribes. This accident had become a legal prescription by the year
312 B.C. In that year the revolutionary census of App. Claudius, which
we shall describe elsewhere,[585] spread them over all the tribes,[586]
and probably, according to their census, over all the centuries. In 304
B.C. the old arrangement, which limited the freedman’s vote, was reverted
to.[587] The censors of 169 went further and restricted them all to a
single tribe.[588] The conflict required the intervention of law, and it
was probably the _lex Aemilia_ (of M. Aemilius Scaurus, consul in 115
B.C.) which re-established the old principle of restriction to the urban
tribes.[589] But the question of the freedman’s vote became a battle-cry
in the last century of the Republic. In 88 B.C. the democratic tribune
Sulpicius passed a law which gave the _libertinus_ the tribe of his
patron.[590] It was repealed by the optimates; but the second triumph
of the democrats in 84 B.C. again restored the law,[591] until Sulla’s
ascendency finally established the limitation to the four city tribes.
The freedmen were excused the burden, because not thought worthy of
the honour, of regular military service in the legions.[592] The same
prejudice did not apply to the fleet, and for this service _libertini_
were freely employed.[593] The lack of free birth was also a ground of
exclusion from the magistracy, and therefore from the Senate, to which
this was the stepping-stone.[594]
§ 2. _The Theory of the Constitution_
The Roman constitution had lost none of its complexity by growth. The
accretions of ages had changed a curious but comparatively simple type
of polity into a jumble of constitutional law and custom, through which
even the keen eye of the Roman jurist could not pierce, and which
even his capacity for fictitious interpretation and the invention of
compromises could not reduce to a system. The lack of logic, which is the
usual accompaniment of a conservatism not thorough-going enough to be
consistent, produced a machine the results of which appeared for a time
to be eminently satisfactory. It conquered the world, and succeeded for
a time in governing it with some show of decency and a fair measure of
success. Had the equilibrium been maintained in practice as in theory,
mixed constitutions would have had the most assured claim to the respect
and acceptance of the world. But as the knots which the jurist could not
untie were cut by the sword, and the constitution reverted to a type
far simpler even than that of its origin, we must assume a weakness in
the mixed system, which might not have rendered it inadequate as the
government of a city state or even of Italy, but certainly rendered
it incapable of imperial rule. The test was a severe one, and the
constitution which could not answer the strain need not be wholly
condemned. For empire is a mere excrescence on the life of a state, a
test neither of its goodness nor of its vitality. A pure treatment of
the Roman constitution will neglect, as far as possible, this abnormal
growth, and, although much of its structure was the result of war,[595]
will be able to show that its essential peculiarities were not the effect
of conquest.
The Roman state was still a limited sovereignty of the people; so
limited, indeed, that the people, i.e. the patricio-plebeian _populus
Romanus_, was dependent, not merely for the expression of its will, but
even for its _existence_, on the life of its supreme magistrates. In
the practice of the Republic down to its closing days, the cessation
of the consulate, by the non-election or the death of its occupants,
caused the suspension of the life of the state. The people could not meet
except under the shadow of the higher _imperium_ or _auspicia_—those of
lesser patrician magistrates were of no avail; for the praetor, though
technically a colleague of the consuls,[596] could not hold the consular
elections[597]—and the city was in a state of suspended animation until
the _auspicia_ in all their purity should be restored, were it but to a
single man. The auspices, meanwhile, have returned to the “fathers,”[598]
and it is they only who can restore them. The first fundamental element,
therefore, in the theory of the Roman constitution, however absurd it
may seem, is that ultimate sovereignty rests with the patrician members
of the Senate.[599] How this theory was put into practice, and what
modifications the practice had undergone since the time of the monarchy,
may be seen by examining the procedure consequent on a Republican
_interregnum_.
The conditions requisite for an _interregnum_ were the non-existence
of consuls, or magistrates with consular power, or a dictator. The
retirement of all the other so-called patrician magistrates, i.e.
_magistratus populi_, was another necessary preliminary, for the auspices
could not return to the _patres_ so long as they were held, whether as
_majora_ or _minora auspicia_,[600] by a patrician magistrate.[601]
Hence, when a sudden occasion arose for the appointment of an interrex,
it was the duty of the Senate to give notice to the patrician magistrates
and to request them to retire from office.[602] The plebeian magistrates
still remained in the exercise of their functions.
It was, in the later Republic, the Senate which took all further
necessary action. In the early Republic there was no possibility of its
being summoned, and the patrician senators met at their own discretion
to appoint the interrex. But after the tribune, who was still in office,
had gained the right of transacting business with the Senate, it was he
who put the question, and the Senate who suggested that the _patricii_
should meet for the purpose. From this time onwards the electors felt no
obligation to meet except on the suggestion of the Senate.[603]
The collegiate principle of the regal _interregnum_ and the use of the
lot[604] had both disappeared; the agreement of the patrician senators
took the form of the election (_creatio_)[605] of a single interrex
(_prodere interregem_). This magistrate nominated his successor, as the
consul nominated the dictator,[606] each succeeding interrex holding
office for five days. There was no limit to the number that might be
created, the interreges varying from the minimum of two to the known
maximum of fourteen;[607] but there must be at least two, the first
being incapable of holding the consular election, probably because
he was regarded as having received the _auspicia_ irregularly. The
qualifications for the interrex were, that he should be a Patrician[608]
and a senator, and the instances seem to show that he was invariably
chosen from the past holders of curule office.[609] The first interrex
was no doubt guided by the wishes of the Senate, or of the _patres_, in
the choice of his nominee, and the whole list may have been prepared
before his appointment. With the creation of the highest regular
patrician office, i.e. with the election of a single consul, the
_interregnum_ necessarily came to an end and the interrex retired.
The reappointment of a chief magistrate called the people into life
again; and, as a rule, it perpetuated itself by perpetuating the
magistracy. There was, indeed, one large section of the people which
had a continuity of existence as a corporation—this was the _concilium_
of the Plebs with its presidents, the tribunes. From the year 287 this
_concilium_ was an independent legislative sovereign, and nothing more
clearly marks the theoretical dualism of popular sovereignty at Rome than
the fact that one parliament could continue to exist while the other, the
_comitia_ in its various shapes, was dormant. The division of executive,
judicial, even of deliberative power, is not uncommon in governments
of the mixed type; the division of unlimited legislative authority is
rarer and nowhere so clearly marked as in Rome; for an act of parliament
did not require the co-operation of the two assemblies—the separate
_fiat_ of each had the force of law.[610] It is true that in practice
this fundamental dualism was not acutely felt, for the individual
elements of the Populus and the Plebs were to all intents and purposes
the same. We may emphasise the practical similarity and the theoretical
difference best by glancing at the two assemblies of the tribes. Except
in elective matters they differed hardly at all in the sphere of their
competence—each was a legislative and judicial assembly. But they were
under the presidency of magistrates of different kinds, and this caused a
slight difference in their constitution. When the tribunes of the Plebs
summoned the people by tribes, the members of the few patrician families
did not attend; when the consul or praetor summoned the people by tribes,
the Patricians could be present.[611] A fundamental distinction in theory
here produces little effect in practice.
While this dual sovereignty—harmless except for its incidental effect
of the preservation of the tribunate—was a result of the course taken
by the evolution of plebeian privileges, a far more serious consequence
was produced by what we noticed as the second leading idea in the Roman
constitution’s period of growth,[612] the weakening of the magistracy.
This weakening—partly the result of a struggle for freedom, partly
of accidental circumstances such as the distractions of war—from the
first assumed a form which prevented Rome from ever expanding into a
democracy. The early Greek states adopted the system of weakening the
sole magistracy, first by dividing its functions amongst several holders,
and then, when this was not sufficient, by deliberately taking powers
from them and giving them to carefully organised popular bodies. In Rome
the principle of division was not wholly unknown; thus the censorship
and praetorship take over some of the functions of the consulate, but
the principle of wholesale transference was entirely absent; even the
usurpation of capital jurisdiction by the people was modified by the
condition that they could meet only on the summons of a magistrate. The
principle of weakening adopted at Rome was that of the increase of the
number of magistrates, without any essential alteration of the character
of the magistracy. The increase was effected partly by a consistent
application of the principle of colleagueship, partly by the setting up
of new powers in conflict with the old. The result was chaos. In the
developed constitution there were twenty annual magistrates—ten tribunes,
two consuls, eight praetors—each armed with the power of passing valid
acts of parliament, and of vetoing the resolutions of his colleagues and
inferiors. It is true that there was a legal subordination amongst them;
the consul was inferior to the tribune, the praetor to the consul; and
the rigorous application of law would have reduced the Roman constitution
to an oligarchy of ten. As a matter of fact, the tribunate was too early
enlisted on the side of the nobility to think of pressing its powers;
dissension reigned within the college, and the history of the collective
magistracy was one of perpetual conflict and therefore of weakness.
In this weakness the people shared, for they were wholly dependent
on the magistracy. In shaking the authority of their representatives
they had shaken their own; and certain radical defects in the popular
organisation, which we shall discuss when we consider the assemblies
more in detail, added to their incapacity to rule. Since the guidance of
magistrates and of people was equally impossible, and central government
must reside somewhere, its fitting place was not unnaturally sought in
the single experienced, permanent, and deliberative body in the state,
the Senate.[613] The assumption of the reins of government by a power,
which as an independent authority was not contemplated in the original
constitution, necessarily gave rise to a body of constitutional custom
by the side of the older constitutional law. The applications of this
new code can only be estimated by a more detailed treatment of the three
factors of government—the magistracy, the people, and the Senate.