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