CHAPTER I

Note: A compilation of all five volumes of this work is also available

individually in the Project Gutenberg library.

See https://www.gutenberg.org/etext/10706

The original German version of this work, Roemische Geschichte,

Zweites Buch: von der Abschaffung des roemischen Keonigtums bis

zur Einigung Italiens, is in the Project Gutenberg E-Library as

E-book #3061.

See https://www.gutenberg.org/etext/3061

THE HISTORY OF ROME, BOOK II

From the Abolition of the Monarchy in Rome to the Union of Italy

by

THEODOR MOMMSEN

Translated with the Sanction of the Author

by

William Purdie Dickson, D.D., LL.D.

Professor of Divinity in the University of Glasgow

A New Edition Revised Throughout and Embodying Recent Additions

Preparer's Note

This work contains many literal citations of and references to

foreign words, sounds, and alphabetic symbols drawn from many

languages, including Gothic and Phoenician, but chiefly Latin and

Greek. This English Gutenberg edition, constrained to the characters

of 7-bit ASCII code, adopts the following orthographic conventions:

1) Except for Greek, all literally cited non-English words that do

not refer to texts cited as academic references, words that in the

source manuscript appear italicized, are rendered with a single

preceding, and a single following dash; thus, -xxxx-.

2) Greek words, first transliterated into Roman alphabetic

equivalents, are rendered with a preceding and a following double-

dash; thus, --xxxx--. Note that in some cases the root word itself

is a compound form such as xxx-xxxx, and is rendered as --xxx-xxx--

3) Simple unideographic references to vocalic sounds, single

letters, or alphabeic dipthongs; and prefixes, suffixes, and syllabic

references are represented by a single preceding dash; thus, -x,

or -xxx.

4) Ideographic references, referring to signs of representation rather

than to content, are represented as -"id:xxxx"-. "id:" stands for

"ideograph", and indicates that the reader should form a picture based

on the following "xxxx"; which may be a single symbol, a word, or an

attempt at a picture composed of ASCII characters. For example,

--"id:GAMMA gamma"-- indicates an uppercase Greek gamma-form followed

by the form in lowercase. Some such exotic parsing as this is

necessary to explain alphabetic development because a single symbol

may have been used for a number of sounds in a number of languages,

or even for a number of sounds in the same language at different

times. Thus, -"id:GAMMA gamma" might very well refer to a Phoenician

construct that in appearance resembles the form that eventually

stabilized as an uppercase Greek "gamma" juxtaposed to one of

lowercase. Also, a construct such as --"id:E" indicates a symbol

that with ASCII resembles most closely a Roman uppercase "E", but,

in fact, is actually drawn more crudely.

5) Dr. Mommsen has given his dates in terms of Roman usage, A.U.C.;

that is, from the founding of Rome, conventionally taken to be

753 B. C. The preparer of this document, has appended to the end

of each volume a table of conversion between the two systems.

CONTENTS

BOOK II: From the Abolition of the Monarchy in Rome to the Union

of Italy

CHAPTER

I. Change of the Constitution--Limitation of the Power of the

Magistrate

II. The Tribunate of the Plebs and the Decemvirate

III. The Equalization of the Orders, and the New Aristocracy

IV. Fall of the Etruscan Power--the Celts

V. Subjugation of the Latins and Campanians by Rome

VI. Struggle of the Italians against Rome

VII. Struggle Between Pyrrhus and Rome, and Union of Italy

VIII. Law--Religion--Military System--Economic Condition--Nationality

IX. Art and Science

BOOK SECOND

From the Abolition of the Monarchy in Rome to the Union of Italy

--dei ouk ekpleittein ton suggraphea terateuomenon dia teis iotopias

tous entugchanontas.--

Polybius.

CHAPTER I

Change of the Constitution--

Limitation of the Power of the Magistrate

Political and Social Distinctions in Rome

The strict conception of the unity and omnipotence of the state in

all matters pertaining to it, which was the central principle of the

Italian constitutions, placed in the hands of the single president

nominated for life a formidable power, which was felt doubtless by the

enemies of the land, but was not less heavily felt by its citizens.

Abuse and oppression could not fail to ensue, and, as a necessary

consequence, efforts were made to lessen that power. It was,

however, the grand distinction of the endeavours after reform and

the revolutions in Rome, that there was no attempt either to impose

limitations on the community as such or even to deprive it of

corresponding organs of expression--that there never was any

endeavour to assert the so-called natural rights of the individual in

contradistinction to the community--that, on the contrary, the attack

was wholly directed against the form in which the community was

represented. From the times of the Tarquins down to those of

the Gracchi the cry of the party of progress in Rome was not for

limitation of the power of the state, but for limitation of the power

of the magistrates: nor amidst that cry was the truth ever forgotten,

that the people ought not to govern, but to be governed.

This struggle was carried on within the burgess-body. Side by

side with it another movement developed itself--the cry of the

non-burgesses for equality of political privileges. Under this head

are included the agitations of the plebeians, the Latins, the Italians,

and the freedmen, all of whom--whether they may have borne the name

of burgesses, as did the plebeians and the freedmen, or not, as was

the case with the Latins and Italians--were destitute of, and desired,

political equality.

A third distinction was one of a still more general nature; the

distinction between the wealthy and the poor, especially such as had

been dispossessed or were endangered in possession. The legal and

political relations of Rome led to the rise of a numerous class of

farmers--partly small proprietors who were dependent on the mercy of

the capitalist, partly small temporary lessees who were dependent on

the mercy of the landlord--and in many instances deprived individuals

as well as whole communities of the lands which they held, without

affecting their personal freedom. By these means the agricultural

proletariate became at an early period so powerful as to have a

material influence on the destinies of the community. The urban

proletariate did not acquire political importance till a much later

epoch.

On these distinctions hinged the internal history of Rome, and, as

may be presumed, not less the history--totally lost to us--of the

other Italian communities. The political movement within the

fully-privileged burgess-body, the warfare between the excluded and

excluding classes, and the social conflicts between the possessors

and the non-possessors of land--variously as they crossed and

interlaced, and singular as were the alliances they often produced

--were nevertheless essentially and fundamentally distinct.

Abolition of the Life-Presidency of the Community

As the Servian reform, which placed the --metoikos-- on a footing of

equality in a military point of view with the burgess, appears to have

originated from considerations of an administrative nature rather than

from any political party-tendency, we may assume that the first of the

movements which led to internal crises and changes of the constitution

was that which sought to limit the magistracy. The earliest

achievement of this, the most ancient opposition in Rome, consisted

in the abolition of the life-tenure of the presidency of the

community; in other words, in the abolition of the monarchy. How

necessarily this was the result of the natural development of things,

is most strikingly demonstrated by the fact, that the same change of

constitution took place in an analogous manner through the whole

circuit of the Italo-Grecian world. Not only in Rome, but likewise

among the other Latins as well as among the Sabellians, Etruscans,

and Apulians--and generally, in all the Italian communities, just as

in those of Greece--we find the rulers for life of an earlier epoch

superseded in after times by annual magistrates. In the case of the

Lucanian canton there is evidence that it had a democratic government

in time of peace, and it was only in the event of war that the

magistrates appointed a king, that is, an official similar to the

Roman dictator. The Sabellian civic communities, such as those of

Capua and Pompeii, in like manner were in later times governed by

a "community-manager" (-medix tuticus-) changed from year to year,

and we may assume that similar institutions existed among the other

national and civic communities of Italy. In this light the reasons

which led to the substitution of consuls for kings in Rome need no

explanation. The organism of the ancient Greek and Italian polity

developed of itself by a sort of natural necessity the limitation of

the life-presidency to a shortened, and for the most part an annual,

term. Simple, however, as was the cause of this change, it might be

brought about in various ways; a resolution might be adopted on the

death of one life-ruler not to elect another--a course which the

Roman senate is said to have attempted after the death of Romulus;

or the ruler might voluntarily abdicate, as is alleged to have been

the intention of king Servius Tullius; or the people might rise in

rebellion against a tyrannical ruler, and expel him.

Expulsion of the Tarquins from Rome

It was in this latter way that the monarchy was terminated in Rome.

For however much the history of the expulsion of the last Tarquinius,

"the proud," may have been interwoven with anecdotes and spun out into

a romance, it is not in its leading outlines to be called in question.

Tradition credibly enough indicates as the causes of the revolt, that

the king neglected to consult the senate and to complete its numbers;

that he pronounced sentences of capital punishment and confiscation

without advising with his counsellors; that he accumulated immense

stores of grain in his granaries, and exacted from the burgesses

military labour and task-work beyond what was due. The exasperation

of the people is attested by the formal vow which they made man by

man for themselves and for their posterity that thenceforth they would

never tolerate a king; by the blind hatred with which the name of king

was ever afterwards regarded in Rome; and above all by the enactment

that the "king for offering sacrifice" (-rex sacrorum- or

-sacrificulus-) --whom they considered it their duty to create that the

gods might not miss their accustomed mediator--should be disqualified

from holding any further office, so that this man became the foremost

indeed, but also the most powerless in the Roman commonwealth. Along

with the last king all the members of his clan were banished--a proof

how close at that time gentile ties still were. The Tarquinii

thereupon transferred themselves to Caere, perhaps their ancient

home,(1) where their family tomb has recently been discovered.

In the room of the one president holding office for life two

annual rulers were now placed at the head of the Roman community.

This is all that can be looked upon as historically certain in

reference to this important event.(2) It is conceivable that in

a great community with extensive dominion like the Roman the royal

power, particularly if it had been in the same family for several

generations, would be more capable of resistance, and the struggle

would thus be keener, than in the smaller states; but there is no

certain indication of any interference by foreign states in the

struggle. The great war with Etruria--which possibly, moreover,

has been placed so close upon the expulsion of the Tarquins only in

consequence of chronological confusion in the Roman annals--cannot

be regarded as an intervention of Etruria in favour of a countryman

who had been injured in Rome, for the very sufficient reason that the

Etruscans notwithstanding their complete victory neither restored the

Roman monarchy, nor even brought back the Tarquinian family.

Powers of the Consuls

If we are left in ignorance of the historical connections of this

important event, we are fortunately in possession of clearer light as

to the nature of the change which was made in the constitution. The

royal power was by no means abolished, as is shown by the very fact

that, when a vacancy occurred afterwards as before, an "interim king"

(-interrex-) was nominated. The one life-king was simply replaced

by two year-kings, who called themselves generals (-praetores-),

or judges (-iudices-), or merely colleagues (consules).(3)

The principles of collegiate tenure and of annual duration are those

which distinguish the republic from the monarchy, and they first meet

us here.

Collegiate Arrangement

The collegiate principle, from which the third and subsequently most

current name of the annual kings was derived, assumed in their case an

altogether peculiar form. The supreme power was not entrusted to the

two magistrates conjointly, but each consul possessed and exercised it

for himself as fully and wholly as it had been possessed and exercised

by the king. This was carried so far that, instead of one of the two

colleagues undertaking perhaps the administration of justice, and

the other the command of the army, they both administered justice

simultaneously in the city just as they both set out together to

the army; in case of collision the matter was decided by a rotation

measured by months or days. A certain partition of functions withal,

at least in the supreme military command, might doubtless take place

from the outset--the one consul for example taking the field against

the Aequi, and the other against the Volsci--but it had in no wise

binding force, and each of the colleagues was legally at liberty to

interfere at any time in the province of the other. When, therefore,

supreme power confronted supreme power and the one colleague forbade

what the other enjoined, the consular commands neutralized each other.

This peculiarly Latin, if not peculiarly Roman, institution of

co-ordinate supreme authorities--which in the Roman commonwealth on

the whole approved itself as practicable, but to which it will be

difficult to find a parallel in any other considerable state

--manifestly sprang out of the endeavour to retain the regal power

in legally undiminished fulness. They were thus led not to break

up the royal office into parts or to transfer it from an individual

to a college, but simply to double it and thereby, if necessary,

to neutralize it through its own action.

Term of Office

As regards the termination of their tenure of office, the earlier

-interregnum- of five days furnished a legal precedent. The ordinary

presidents of the community were bound not to remain in office

longer than a year reckoned from the day of their entering on their

functions;(4) and they ceased -de jure- to be magistrates upon the

expiry of the year, just as the interrex on the expiry of the five

days. Through this set termination of the supreme office the

practical irresponsibility of the king was lost in the case of the

consul. It is true that the king was always in the Roman commonwealth

subject, and not superior, to the law; but, as according to the Roman

view the supreme judge could not be prosecuted at his own bar, the

king might doubtless have committed a crime, but there was for him no

tribunal and no punishment. The consul, again, if he had committed

murder or treason, was protected by his office, but only so long as

it lasted; on his retirement he was liable to the ordinary penal

jurisdiction like any other burgess.

To these leading changes, affecting the principles of the

constitution, other restrictions were added of a subordinate and more

external character, some of which nevertheless produced a deep effect

The privilege of the king to have his fields tilled by task-work

of the burgesses, and the special relation of clientship in which

the --metoeci-- as a body must have stood to the king, ceased of

themselves with the life tenure of the office.

Right of Appeal

Hitherto in criminal processes as well as in fines and corporal

punishments it had been the province of the king not only to

investigate and decide the cause, but also to decide whether the

person found guilty should or should not be allowed to appeal for

pardon. The Valerian law now (in 245) enacted that the consul must

allow the appeal of the condemned, where sentence of capital or

corporal punishment had been pronounced otherwise than by martial

law--a regulation which by a later law (of uncertain date, but passed

before 303) was extended to heavy fines. In token of this right of

appeal, when the consul appeared in the capacity of judge and not

of general, the consular lictors laid aside the axes which they had

previously carried by virtue of the penal jurisdiction belonging to

their master. The law however threatened the magistrate, who did

not allow due course to the -provocatio-, with no other penalty than

infamy--which, as matters then stood, was essentially nothing but a

moral stain, and at the utmost only had the effect of disqualifying

the infamous person from giving testimony. Here too the course

followed was based on the same view, that it was in law impossible

to diminish the old regal powers, and that the checks imposed upon the

holder of the supreme authority in consequence of the revolution had,

strictly viewed, only a practical and moral value. When therefore the

consul acted within the old regal jurisdiction, he might in so acting

perpetrate an injustice, but he committed no crime and consequently

was not amenable for what he did to the penal judge.

A limitation similar in its tendency took place in the civil

jurisdiction; for probably there was taken from the consuls at

the very outset the right of deciding at their discretion a legal

dispute between private persons.

Restrictions on the Delegation of Powers

The remodelling of the criminal as of civil procedure stood in

connection with a general arrangement respecting the transference

of magisterial power to deputies or successors. While the king had

been absolutely at liberty to nominate deputies but had never been

compelled to do so, the consuls exercised the right of delegating

power in an essentially different way. No doubt the rule that, if

the supreme magistrate left the city, he had to appoint a warden there

for the administration of justice,(5) remained in force also for the

consuls, and the collegiate arrangement was not even extended to such

delegation; on the contrary this appointment was laid on the consul

who was the last to leave the city. But the right of delegation

for the time when the consuls remained in the city was probably

restricted, upon the very introduction of this office, by providing

that delegation should be prescribed to the consul for definite

cases, but should be prohibited for all cases in which it was not so

prescribed. According to this principle, as we have said, the whole

judicial system was organized. The consul could certainly exercise

criminal jurisdiction also as to a capital process in the way of

submitting his sentence to the community and having it thereupon

confirmed or rejected; but he never, so far as we see, exercised

this right, perhaps was soon not allowed to exercise it, and possibly

pronounced a criminal judgment only in the case of appeal to the

community being for any reason excluded. Direct conflict between

the supreme magistrate of the community and the community itself was

avoided, and the criminal procedure was organized really in such a

way, that the supreme magistracy remained only in theory competent,

but always acted through deputies who were necessary though appointed

by himself. These were the two--not standing--pronouncers-of-judgment

for revolt and high treason (-duoviri perduellionis-) and the two

standing trackers of murder, the -quaestores parricidii-. Something

similar may perhaps have occurred in the regal period, where the

king had himself represented in such processes;(6) but the standing

character of the latter institution, and the collegiate principle

carried out in both, belong at any rate to the republic. The latter

arrangement became of great importance also, in so far that thereby

for the first time alongside of the two standing supreme magistrates

were placed two assistants, whom each supreme magistrate nominated at

his entrance on office, and who in due course also went out with him

on his leaving it--whose position thus, like the supreme magistracy

itself, was organized according to the principles of a standing

office, of a collegiate form, and of an annual tenure. This was not

indeed as yet the inferior magistracy itself, at least not in the

sense which the republic associated with the magisterial position,

inasmuch as the commissioners did not emanate from the choice of

the community; but it doubtless became the starting-point for the

institution of subordinate magistrates, which was afterwards developed

in so manifold ways.

In a similar way the decision in civil procedure was withdrawn from

the supreme magistracy, inasmuch as the right of the king to transfer

an individual process for decision to a deputy was converted into the

duty of the consul, after settling the legitimate title of the party

and the object of the suit, to refer the disposal of it to a private

man to be selected by him and furnished by him with instructions.

In like manner there was left to the consuls the important

administration of the state-treasure and of the state-archives;

nevertheless probably at once, or at least very early, there were

associated with them standing assistants in that duty, namely, those

quaestors who, doubtless, had in exercising this function absolutely

to obey them, but without whose previous knowledge and co-operation

the consuls could not act.

Where on the other hand such directions were not in existence, the

president of the community in the capital had personally to intervene;

as indeed, for example, at the introductory steps of a process he

could not under any circumstances let himself be represented by

deputy.

This double restriction of the consular right of delegation subsisted

for the government of the city, and primarily for the administration

of justice and of the state-chest. As commander-in-chief, on the

other hand, the consul retained the right of handing over all or any

of the duties devolving on him. This diversity in the treatment of

civil and military delegation explains why in the government of the

Roman community proper no delegated magisterial authority (-pro

magistrate-) was possible, nor were purely urban magistrates ever

represented by non-magistrates; and why, on the other hand, military

deputies (-pro consuls-, -pro praetore-, -pro quaestore-) were

excluded from all action within the community proper.

Nominating a Successor

The right of nominating a successor had not been possessed by the

king, but only by the interrex.(7) The consul was in this respect

placed on a like footing with the latter; nevertheless, in the event

of his not having exercised the power, the interrex stepped in as

before, and the necessary continuity of the office subsisted still

undiminished under the republican government. The right of

nomination, however, was materially restricted in favour of the

burgesses, as the consul was bound to procure the assent of the

burgesses for the successors designated by him, and, in the sequel,

to nominate only those whom the community designated to him. Through

this binding right of proposal the nomination of the ordinary supreme

magistrates doubtless in a certain sense passed substantially into the

hands of the community; practically, however, there still existed a

very considerable distinction between that right of proposal and the

right of formal nomination. The consul conducting the election was by

no means a mere returning officer; he could still, e. g. by virtue of

his old royal prerogative reject particular candidates and disregard

the votes tendered for them; at first he might even limit the choice

to a list of candidates proposed by himself; and--what was of

still more consequence--when the collegiate consulship was to be

supplemented by the dictator, of whom we shall speak immediately,

in so supplementing it the community was not consulted, but on the

contrary the consul in that case appointed his colleague with the

same freedom, wherewith the interrex had once appointed the king.

Change in the Nomination of Priests

The nomination of the priests, which had been a prerogative of the

kings,(8) was not transferred to the consuls; but the colleges of

priests filled up the vacancies in their own ranks, while the Vestals

and single priests were nominated by the pontifical college, on which

devolved also the exercise of the paternal jurisdiction, so to speak,

of the community over the priestesses of Vesta. With a view to the

performance of these acts, which could only be properly performed by

a single individual, the college probably about this period first

nominated a president, the -Pontifex maximus-. This separation of the

supreme authority in things sacred from the civil power--while the

already-mentioned "king for sacrifice" had neither the civil nor the

sacred powers of the king, but simply the title, conferred upon him

--and the semi-magisterial position of the new high priest, so decidedly

contrasting with the character which otherwise marked the priesthood

in Rome, form one of the most significant and important peculiarities

of this state-revolution, the aim of which was to impose limits on the

powers of the magistrates mainly in the interest of the aristocracy.

We have already mentioned that the outward state of the consul was

far inferior to that of the regal office hedged round as it was

with reverence and terror, that the regal name and the priestly

consecration were withheld from him, and that the axe was taken away

from his attendants. We have to add that, instead of the purple

robe which the king had worn, the consul was distinguished from the

ordinary burgess simply by the purple border of his toga, and that,

while the king perhaps regularly appeared in public in his chariot,

the consul was bound to accommodate himself to the general rule and

like every other burgess to go within the city on foot.

The Dictator

These limitations, however, of the plenary power and of the insignia

of the magistracy applied in the main only to the ordinary presidency

of the community. In extraordinary cases, alongside of, and in a

certain sense instead of, the two presidents chosen by the community

there emerged a single one, the master of the army (-magister populi-)

usually designated as the -dictator-. In the choice of dictator the

community exercised no influence at all, but it proceeded solely

from the free resolve of one of the consuls for the time being, whose

action neither his colleague nor any other authority could hinder.

There was no appeal from his sentence any more than from that of the

king, unless he chose to allow it. As soon as he was nominated, all

the other magistrates were by right subject to his authority. On the

other hand the duration of the dictator's office was limited in two

ways: first, as the official colleague of those consuls, one of whom

had nominated him, he might not remain in office beyond their legal

term; and secondly, a period of six months was fixed as the absolute

maximum for the duration of his office. It was a further arrangement

peculiar to the dictatorship, that the "master of the army" was bound

to nominate for himself immediately a "master of horse" (-magister

equitum-), who acted along with him as a dependent assistant somewhat

as did the quaestor along with the consul, and with him retired from

office--an arrangement undoubtedly connected with the fact that

the dictator, presumably as being the leader of the infantry, was

constitutionally prohibited from mounting on horseback. In the light

of these regulations the dictatorship is doubtless to be conceived as

an institution which arose at the same time with the consulship, and

which was designed, especially in the event of war, to obviate for a

time the disadvantages of divided power and to revive temporarily the

regal authority; for in war more particularly the equality of rights

in the consuls could not but appear fraught with danger; and not only

positive testimonies, but above all the oldest names given to the

magistrate himself and his assistant, as well as the limitation of the

office to the duration of a summer campaign, and the exclusion of the

-provocatio- attest the pre-eminently military design of the original

dictatorship.

On the whole, therefore, the consuls continued to be, as the kings had

been, the supreme administrators, judges, and generals; and even in a

religious point of view it was not the -rex sacrorum- (who was only

nominated that the name might be preserved), but the consul, who

offered prayers and sacrifices for the community, and in its name

ascertained the will of the gods with the aid of those skilled in

sacred lore. Against cases of emergency, moreover, a power was

retained of reviving at any moment, without previous consultation of

the community, the full and unlimited regal authority, so as to set

aside the limitations imposed by the collegiate arrangement and by

the special curtailments of jurisdiction. In this way the problem of

legally retaining and practically restricting the regal authority was

solved in genuine Roman fashion with equal acuteness and simplicity

by the nameless statesmen who worked out this revolution.

Centuries and Curies

The community thus acquired by the change of constitution rights

of the greatest importance: the right of annually designating its

presidents, and that of deciding in the last instance regarding the

life or death of the burgess. But the body which acquired these

rights could not possibly be the community as it had been hitherto

constituted--the patriciate which had practically become an order of

nobility. The strength of the nation lay in the "multitude" (-plebs-)

which already comprehended in large numbers people of note and of

wealth. The exclusion of this multitude from the public assembly,

although it bore part of the public burdens, might be tolerated as

long as that public assembly itself had no very material share in

the working of the state machine, and as long as the royal power by

the very fact of its high and free position remained almost equally

formidable to the burgesses and to the --metoeci-- and thereby

maintained equality of legal redress in the nation. But when the

community itself was called regularly to elect and to decide, and the

president was practically reduced from its master to its commissioner

for a set term, this relation could no longer be maintained as it

stood; least of all when the state had to be remodelled on the morrow

of a revolution, which could only have been carried out by the

co-operation of the patricians and the --metoeci--. An extension of

that community was inevitable; and it was accomplished in the most

comprehensive manner, inasmuch as the collective plebeiate, that is,

all the non-burgesses who were neither slaves nor citizens of

extraneous communities living at Rome under the -ius hospitii-,

were admitted into the burgess-body. The curiate assembly of the

old burgesses, which hitherto had been legally and practically the

first authority in the state, was almost totally deprived of its

constitutional prerogatives. It was to retain its previous powers

only in acts purely formal or in those which affected clan-relations

--such as the vow of allegiance to be taken to the consul or to

the dictator when they entered on office just as previously to the

king,(9) and the legal dispensations requisite for an -arrogatio- or

a testament--but it was not in future to perform any act of a properly

political character. Soon even the plebeians were admitted to the

right of voting also in the curies, and by that step the old

burgess-body lost the right of meeting and of resolving at all.

The curial organization was virtually rooted out, in so far as it

was based on the clan-organization and this latter was to be found

in its purity exclusively among the old burgesses. When the plebeians

were admitted into the curies, they were certainly also allowed to

constitute themselves -de jure- as--what in the earlier period they

could only have been -de facto-(10)--families and clans; but it is

distinctly recorded by tradition and in itself also very conceivable,

that only a portion of the plebeians proceeded so far as to constitute

-gentes-, and thus the new curiate assembly, in opposition to its original

character, included numerous members who belonged to no clan.

All the political prerogatives of the public assembly--as well the

decision on appeals in criminal causes, which indeed were essentially

political processes, as the nomination of magistrates and the adoption

or rejection of laws--were transferred to, or were now acquired by,

the assembled levy of those bound to military service; so that the

centuries now received the rights, as they had previously borne the

burdens, of citizens. In this way the small initial movements made by

the Servian constitution--such as, in particular, the handing over to

the army the right of assenting to the declaration of an aggressive

war(11)--attained such a development that the curies were completely

and for ever cast into the shade by the assembly of the centuries, and

people became accustomed to regard the latter as the sovereign people.

In this assembly debate took place merely when the presiding

magistrate chose himself to speak or bade others do so; of course

in cases of appeal both parties had to be heard. A simple majority

of the centuries was decisive.

As in the curiate assembly those who were entitled to vote at all were

on a footing of entire equality, and therefore after the admission

of all the plebeians into the curies the result would have been a

complete democracy, it may be easily conceived that the decision of

political questions continued to be withheld from the curies; the

centuriate assembly placed the preponderating influence, not in the

hands of the nobles certainly, but in those of the possessors of

property, and the important privilege of priority in voting, which

often practically decided the election, placed it in the hands of

the -equites- or, in other words, of the rich.

Senate

The senate was not affected by the reform of the constitution in the

same way as the community. The previously existing college of elders

not only continued exclusively patrician, but retained also its

essential prerogatives--the right of appointing the interrex, and of

confirming or rejecting the resolutions adopted by the community as

constitutional or unconstitutional. In fact these prerogatives were

enhanced by the reform of the constitution, because the appointment

of the magistrates also, which fell to be made by election of the

community, was thenceforth subject to the confirmation or rejection

of the patrician senate. In cases of appeal alone its confirmation,

so far as we know, was never deemed requisite, because in these the

matter at stake was the pardon of the guilty and, when this was

granted by the sovereign assembly of the people, any cancelling

of such an act was wholly out of the question.

But, although by the abolition of the monarchy the constitutional

rights of the patrician senate were increased rather than diminished,

there yet took place--and that, according to tradition, immediately on

the abolition of the monarchy--so far as regards other affairs which

fell to be discussed in the senate and admitted of a freer treatment,

an enlargement of that body, which brought into it plebeians also, and

which in its consequences led to a complete remodelling of the whole.

From the earliest times the senate had acted also, although not solely

or especially, as a state-council; and, while probably even in the

time of the kings it was not regarded as unconstitutional for non-

senators in this case to take part in the assembly,(12) it was now

arranged that for such discussions there should be associated with

the patrician senate (-patres-) a number of non-patricians "added to

the roll" (-conscripti-). This did not at all put them on a footing

of equality; the plebeians in the senate did not become senators, but

remained members of the equestrian order, were not designated -patres-

but were even now -conscripti-, and had no right to the badge of

senatorial dignity, the red shoe.(13) Moreover, they not only

remained absolutely excluded from the exercise of the magisterial

prerogatives belonging to the senate (-auctoritas-), but were obliged,

even where the question had reference merely to an advice (-consilium-),

to rest content with the privilege of being present in silence

while the question was put to the patricians in turn, and of only

indicating their opinion by adding to the numbers when the division

was taken--voting with the feet (-pedibus in sententiam ire-,

-pedarii-) as the proud nobility expressed it. Nevertheless,

the plebeians found their way through the new constitution not

merely to the Forum, but also to the senate-house, and the first

and most difficult step towards equality of rights was taken in

this quarter also.

Otherwise there was no material change in the arrangements affecting

the senate. Among the patrician members a distinction of rank soon

came to be recognized, especially in putting the vote: those who were

proximately designated for the supreme magistracy, or who had already

administered it, were entered on the list and were called upon to vote

before the rest; and the position of the first of them, the foreman of

the senate (-princeps senatus-) soon became a highly coveted place of

honour. The consul in office, on the other hand, no more ranked as a

member of senate than did the king, and therefore in taking the votes

did not include his own. The selection of the members--both of the

narrower patrician senate and of those merely added to the roll--fell

to be made by the consuls just as formerly by the kings; but the

nature of the case implied that, while the king had still perhaps some

measure of regard to the representation of the several clans in the

senate, this consideration was of no account so far as concerned

the plebeians, among whom the clan-organization was but imperfectly

developed, and consequently the relation of the senate to that

organization in general fell more and more into abeyance. We have no

information that the electing consuls were restricted from admitting

more than a definite number of plebeians to the senate; nor was there

need for such a regulation, because the consuls themselves belonged to

the nobility. On the other hand probably from the outset the consul

was in virtue of his very position practically far less free, and

far more bound by the opinions of his order and by custom, in the

appointment of senators than the king. The rule in particular, that

the holding of the consulship should necessarily be followed by

admission to the senate for life, if, as was probably the case at

this time, the consul was not yet a member of it at the time of

his election, must have in all probability very early acquired

consuetudinary force. In like manner it seems to have become early

the custom not to fill up the senators' places immediately on their

falling vacant, but to revise and complete the roll of the senate on

occasion of the census, consequently, as a rule, every fourth year;

which also involved a not unimportant restriction on the authority

entrusted with the selection. The whole number of the senators

remained as before, and in this the -conscripti- were also included;

from which fact we are probably entitled to infer the numerical

falling off of the patriciate.(14)

Conservative Character of the Revolution

We thus see that in the Roman commonwealth, even on the conversion of

the monarchy into a republic, the old was as far as possible retained.

So far as a revolution in a state can be conservative at all, this one

was so; not one of the constituent elements of the commonwealth was

really overthrown by it. This circumstance indicates the character

of the whole movement. The expulsion of the Tarquins was not, as the

pitiful and deeply falsified accounts of it represent, the work of a

people carried away by sympathy and enthusiasm for liberty, but the

work of two great political parties already engaged in conflict, and

clearly aware that their conflict would steadily continue--the old

burgesses and the --metoeci-- --who, like the English Whigs and

Tories in 1688, were for a moment united by the common danger which

threatened to convert the commonwealth into the arbitrary government

of a despot, and differed again as soon as the danger was over.

The old burgesses could not get rid of the monarchy without the

cooperation of the new burgesses; but the new burgesses were far from

being sufficiently strong to wrest the power out of the hands of the

former at one blow. Compromises of this sort are necessarily limited

to the smallest measure of mutual concessions obtained by tedious

bargaining; and they leave the future to decide which of the

constituent elements shall eventually preponderate, and whether they

will work harmoniously together or counteract one another. To look

therefore merely to the direct innovations, possibly to the mere

change in the duration of the supreme magistracy, is altogether to

mistake the broad import of the first Roman revolution: its indirect

effects were by far the most important, and vaster doubtless than

even its authors anticipated.

The New Community

This, in short, was the time when the Roman burgess-body in the

later sense of the term originated. The plebeians had hitherto been

--metoeci-- who were subjected to their share of taxes and burdens,

but who were nevertheless in the eye of the law really nothing but

tolerated aliens, between whose position and that of foreigners proper

it may have seemed hardly necessary to draw a definite line of

distinction. They were now enrolled in the lists as burgesses liable

to military service, and, although they were still far from being on

a footing of legal equality--although the old burgesses still remained

exclusively entitled to perform the acts of authority constitutionally

pertaining to the council of elders, and exclusively eligible to the

civil magistracies and priesthoods, nay even by preference entitled to

participate in the usufructs of burgesses, such as the joint use of

the public pasture--yet the first and most difficult step towards

complete equalization was gained from the time when the plebeians no

longer served merely in the common levy, but also voted in the common

assembly and in the common council when its opinion was asked, and the

head and back of the poorest --metoikos-- were as well protected by

the right of appeal as those of the noblest of the old burgesses.

One consequence of this amalgamation of the patricians and plebeians

in a new corporation of Roman burgesses was the conversion of the

old burgesses into a clan-nobility, which was incapable of receiving

additions or even of filling up its own ranks, since the nobles no

longer possessed the right of passing decrees in common assembly

and the adoption of new families into the nobility by decree of the

community appeared still less admissible. Under the kings the ranks

of the Roman nobility had not been thus closed, and the admission of

new clans was no very rare occurrence: now this genuine characteristic

of patricianism made its appearance as the sure herald of the speedy

loss of its political privileges and of its exclusive estimation

in the community. The exclusion of the plebeians from all public

magistracies and public priesthoods--while they were admissible to

the position of officers and senators--and the maintenance, with

perverse obstinacy, of the legal impossibility of marriage between old

burgesses and plebeians, further impressed on the patriciate from the

outset the stamp of an exclusive and wrongly privileged aristocracy.

A second consequence of the new union of the burgesses must have been

a more definite regulation of the right of settlement, with reference

both to the Latin confederates and to other states. It became

necessary--not so much on account of the right of suffrage in the

centuries (which indeed belonged only to the freeholder) as on

account of the right of appeal, which was intended to be conceded

to the plebeian, but not to the foreigner dwelling for a time or

even permanently in Rome--to express more precisely the conditions

of the acquisition of plebeian rights, and to mark off the enlarged

burgess-body in its turn from those who were now the non-burgesses.

To thisepoch therefore we may trace back--in the views and feelings

of the people--both the invidiousness of the distinction between

patricians and plebeians, and the strict and haughty line of demarcation

between -cives Romani- and aliens. But the former civic distinction was

in its nature transient, while the latter political one was permanent;

and the sense of political unity and rising greatness, which was thus

implanted in the heart of the nation, was expansive enough first

to undermine and then to carry away with its mighty current those

paltry distinctions.

Law and Edict

It was at this period, moreover, that law and edict were separated.

The distinction indeed had its foundation in the essential character

of the Roman state; for even the regal power in Rome was subordinate,

not superior, to the law of the land. But the profound and practical

veneration, which the Romans, like every other people of political

capacity, cherished for the principle of authority, gave birth to the

remarkable rule of Roman constitutional and private law, that every

command of the magistrate not based upon a law was at least valid

during his tenure of office, although it expired with that tenure.

It is evident that in this view, so long as the presidents were

nominated for life, the distinction between law and edict must have

practically been almost lost sight of, and the legislative activity

of the public assembly could acquire no development. On the other

hand it obtained a wide field of action after the presidents were

changed annually; and the fact was now by no means void of practical

importance, that, if the consul in deciding a process committed a

legal informality, his successor could institute a fresh trial of

the cause.

Civil and Military Authority

It was at this period, finally, that the provinces of civil and

military authority were separated. In the former the law ruled,

in the latter the axe: the former was governed by the constitutional

checks of the right of appeal and of regulated delegation; in the

latter the general held an absolute sway like the king.(15) It was

an established principle, that the general and the army as such should

not under ordinary circumstances enter the city proper. That organic

and permanently operative enactments could only be made under the

authority of the civil power, was implied in the spirit, if not in the

letter, of the constitution. Instances indeed occasionally occurred

where the general, disregarding this principle, convoked his forces

in the camp as a burgess assembly, nor was a decree passed under

such circumstances legally void; but custom disapproved of such

a proceeding, and it soon fell into disuse as though it had been

forbidden. The distinction between Quirites and soldiers became

more and more deeply rooted in the minds of the burgesses.

Government of the Patriciate

Time however was required for the development of these consequences

of the new republicanism; vividly as posterity felt its effects,

the revolution probably appeared to the contemporary world at first

in a different light. The non-burgesses indeed gained by it

burgess-rights, and the new burgess-body acquired in the -comitia

centuriata- comprehensive prerogatives; but the right of rejection on

the part of the patrician senate, which in firm and serried ranks

confronted the -comitia- as if it were an Upper House, legally hampered

their freedom of movement precisely in the most important matters, and

although not in a position to thwart the serious will of the collective

body, could yet practically delay and cripple it. If the nobility in

giving up their claim to be the sole embodiment of the community did not

seem to have lost much, they had in other respects decidedly gained.

The king, it is true, was a patrician as well as the consul, and the

right of nominating the members of the senate belonged to the latter as

to the former; but while his exceptional position raised the former no

less above the patricians than above the plebeians, and while cases

might easily occur in which he would be obliged to lean upon the

support of the multitude even against the nobility, the consul--ruling

for a brief term, but before and after that term simply one of the

nobility, and obeying to-morrow the noble fellow-burgess whom he had

commanded to-day--by no means occupied a position aloof from his

order, and the spirit of the noble in him must have been far more

powerful than that of the magistrate. Indeed, if at any time by

way of exception a patrician disinclined to the rule of the nobility

was called to the government, his official authority was paralyzed

partly by the priestly colleges, which were pervaded by an intense

aristocratic spirit, partly by his colleague, and was easily suspended

by the dictatorship; and, what was of still more moment, he wanted

the first element of political power, time. The president of a

commonwealth, whatever plenary authority may be conceded to him,

will never gain possession of political power, if he does not continue

for some considerable time at the head of affairs; for a necessary

condition of every dominion is duration. Consequently the senate

appointed for life inevitably acquired--and that by virtue chiefly

of its title to advise the magistrate in all points, so that we speak

not of the narrower patrician, but of the enlarged patricio-plebeian,

senate--so great an influence as contrasted with the annual rulers,

that their legal relations became precisely inverted; the senate

substantially assumed to itself the powers of government, and

the former ruler sank into a president acting as its chairman and

executing its decrees. In the case of every proposal to be submitted

to the community for acceptance or rejection the practice of

previously consulting the whole senate and obtaining its approval,

while not constitutionally necessary, was consecrated by use and wont;

and it was not lightly or willingly departed from. The same course

was followed in the case of important state-treaties, of the

management and distribution of the public lands, and generally of

every act the effects of which extended beyond the official year;

and nothing was left to the consul but the transaction of current

business, the initial steps in civil processes, and the command in

war. Especially important in its consequences was the change in

virtue of which neither the consul, nor even the otherwise absolute

dictator, was permitted to touch the public treasure except with the

consent and by the will of the senate. The senate made it obligatory

on the consuls to commit the administration of the public chest, which

the king had managed or might at any rate have managed himself, to two

standing subordinate magistrates, who were nominated no doubt by the

consuls and had to obey them, but were, as may easily be conceived,

much more dependent than the consuls themselves on the senate.(16)

It thus drew into its own hands the management of finance; and this

right of sanctioning the expenditure of money on the part of the

Roman senate may be placed on a parallel in its effects with the

right of sanctioning taxation in the constitutional monarchies

of the present day.

The consequences followed as a matter of course. The first and

most essential condition of all aristocratic government is, that

the plenary power of the state be vested not in an individual but

in a corporation. Now a preponderantly aristocratic corporation,

the senate, had appropriated to itself the government, and at the

same time the executive power not only remained in the hands of the

nobility, but was also entirely subject to the governing corporation.

It is true that a considerable number of men not belonging to the

nobility sat in the senate; but as they were incapable of holding

magistracies or even of taking part in the debates, and thus were

excluded from all practical share in the government, they necessarily

played a subordinate part in the senate, and were moreover kept in

pecuniary dependence on the corporation through the economically

important privilege of using the public pasture. The gradually

recognized right of the patrician consuls to revise and modify the

senatorial list at least every fourth year, ineffective as presumably

it was over against the nobility, might very well be employed in their

interest, and an obnoxious plebeian might by means of it be kept out

of the senate or even be removed from its ranks.

The Plebeian Opposition

It is therefore quite true that the immediate effect of the revolution

was to establish the aristocratic government. It is not, however, the

whole truth. While the majority of contemporaries probably thought

that the revolution had brought upon the plebeians only a more rigid

despotism, we who come afterwards discern in that very revolution the

germs of young liberty. What the patricians gained was gained at the

expense not of the community, but of the magistrate's power. It is

true that the community gained only a few narrowly restricted rights,

which were far less practical and palpable than the acquisitions

of the nobility, and which not one in a thousand probably had the

wisdom to value; but they formed a pledge and earnest of the future.

Hitherto the --metoeci-- had been politically nothing, the old

burgesses had been everything; now that the former were embraced

in the community, the old burgesses were overcome; for, however much

might still be wanting to full civil equality, it is the first breach,

not the occupation of the last post, that decides the fall of the

fortress. With justice therefore the Roman community dated its

political existence from the beginning of the consulate.

While however the republican revolution may, notwithstanding the

aristocratic rule which in the first instance it established, be

justly called a victory of the former --metoeci-- or the -plebs-,

the revolution even in this respect bore by no means the character

which we are accustomed in the present day to designate as democratic.

Pure personal merit without the support of birth and wealth could

perhaps gain influence and consideration more easily under the regal

government than under that of the patriciate. Then admission to

the patriciate was not in law foreclosed; now the highest object of

plebeian ambition was to be admitted into the dumb appendage of

the senate. The nature of the case implied that the governing

aristocratic order, so far as it admitted plebeians at all, would

grant the right of occupying seats in the senate not absolutely to

the best men, but chiefly to the heads of the wealthy and notable

plebeian families; and the families thus admitted jealously guarded

the possession of the senatorial stalls. While a complete legal

equality therefore had subsisted within the old burgess-body, the

new burgess-body or former --metoeci-- came to be in this way divided

from the first into a number of privileged families and a multitude

kept in a position of inferiority. But the power of the community now

according to the centuriate organization came into the hands of that

class which since the Servian reform of the army and of taxation had

borne mainly the burdens of the state, namely the freeholders, and

indeed not so much into the hands of the great proprietors or into

those of the small cottagers, as into those of the intermediate class

of farmers--an arrangement in which the seniors were still so far

privileged that, although less numerous, they had as many voting-

divisions as the juniors. While in this way the axe was laid to the

root of the old burgess-body and their clan-nobility, and the basis

of a new burgess-body was laid, the preponderance in the latter rested

on the possession of land and on age, and the first beginnings were

already visible of a new aristocracy based primarily on the actual

consideration in which the families were held--the future nobility.

There could be no clearer indication of the fundamentally conservative

character of the Roman commonwealth than the fact, that the revolution

which gave birth to the republic laid down at the same time the

primary outlines of a new organization of the state, which was in

like manner conservative and in like manner aristocratic.

Notes for Book II Chapter I

1. I. IX. The Tarquins

2. The well-known fable for the most part refutes itself. To a

considerable extent it has been concocted for the explanation of

surnames (-Brutus-, -Poplicola-, -Scaevola-). But even its apparently

historical ingredients are found on closer examination to have been

invented. Of this character is the statement that Brutus was captain

of the horsemen (-tribunus celerum-) and in that capacity proposed

the decree of the people as to the banishment of the Tarquins; for,

according to the Roman constitution, it is quite impossible that a

mere officer should have had the right to convoke the curies. The

whole of this statement has evidently been invented with the view of

furnishing a legal basis for the Roman republic; and very ill invented

it is, for in its case the -tribunus celerum- is confounded with the

entirely different -magister equitum- (V. Burdens Of The Burgesses

f.), and then the right of convoking the centuries which pertained

to the latter by virtue of his praetorian rank is made to apply to

the assembly of the curies.

3. -Consules- are those who "leap or dance together," as -praesul- is

one who "leaps before," -exsul-, one who "leaps out" (--o ekpeson--),

-insula-, a "leap into," primarily applied to a mass of rock fallen

into the sea.

4. The day of entering on office did not coincide with the beginning

of the year (1st March), and was not at all fixed. The day of

retiring was regulated by it, except when a consul was elected

expressly in room of one who had dropped out (-consul suffectus-);

in which case the substitute succeeded to the rights and consequently

to the term of him whom he replaced. But these supplementary consuls

in the earlier period only occurred when merely one of the consuls had

dropped out: pairs of supplementary consuls are not found until the

later ages of the republic. Ordinarily, therefore, the official year

of a consul consisted of unequal portions of two civil years.

5. I. V. The King

6. I. XI. Crimes

7. I. V. Prerogatives of the Senate

8. I. V. The King

9. I. V. The King

10. I. VI. Dependents and Guests

11. I. VI. Political Effects of the Servian Military Organization

12. I. V. The Senate as State Council

13. I. V. Prerogatives of the Senate

14. That the first consuls admitted to the senate 164 plebeians, is

hardly to be regarded as a historical fact, but rather as a proof that

the later Roman archaeologists were unable to point out more than 136

-gentes- of the Roman nobility (Rom, Forsch. i. 121).

15. It may not be superfluous to remark, that the -iudicium

legitimum-, as well as that -quod imperio continetur-, rested on

the imperium of the directing magistrate, and the distinction only

consisted in the circumstance that the -imperium- was in the former

case limited by the -lex-, while in the latter it was free.

16. II. I. Restrictions on the Delegation of Powers

The History of Rome, Book II From the Abolition of the Monarchy in Rome to the Union of Italy · 第 1 / 10 章