Prætors interpreted law. As a legislative body it shared its functions
with the popular assemblies; its decrees were rather administrative
than legislative, but it has never been rivalled, except, perhaps,
by the English judges, in its power of expanding the application of
existing laws and creating a legal system. This peculiarity of the
Roman mind, its conservatism combined with a capacity for readjustment,
gave us the Roman Empire; without it the Roman conquests would have
gone for nothing. The Greek, far quicker witted than the Roman, was
ready to change his laws at a moment’s notice. It was to him an open
question whether his state should be democratic or oligarchic; the
question could be settled according to convenience, by voting or by
force; a new constitution could be framed to suit new emergencies. The
Roman mind worked differently; with the Roman the new had, if possible,
to be read into the old. The Roman did not become a constitution
maker till he had passed under Greek influence, and he was remarkably
unsuccessful in the task. He soon abandoned it, but he never failed in
his casuistry; there was no conceivable adjustment of human relations
which the Roman jurisconsult could not refer back to the Twelve Tables;
he never troubled himself as to what was to the advantage of the
greatest number, or as to the precise definition of justice; he simply
took his law, his precedents, his authorised interpretations, and
worked the new circumstances into line with the old forms.
Till the Greek influence modified Roman habits the education of the
young Roman noblemen was largely legal; while the Greek youth was
discussing morality speculatively, the Roman youth was being instructed
in the application of law. He sat at the feet of some Mucius Scævola,
and heard his solutions of knotty entanglements; the oratory in which
he was trained was not the florid rhetoric, which may be addressed
successfully to a mob, but forensic oratory addressed to trained
intelligence.
With the legal temperament, the Roman combined the religious
temperament, the habit of looking to authority rather than to
speculation as a guide for his actions. The Sibylline books continued
to be consulted in form, if not in fact, on occasions of emergency,
long after the cultivated Roman had become familiar with the
rationalistic speculations of the Greeks and the mathematicians.
The Senate might under these influences have easily degenerated into a
futile subservience to stereotyped forms and habits which would have
rendered expansion impossible; it might have opposed a Chinese rigidity
to necessary innovations; but the destinies of Rome had ordained that
from the beginning the principle of modification should exist alongside
with a strong conservative tendency. It may be left to the antiquaries
to decide exactly how much truth survives in the legends which form the
chief part of early Roman history, but even if it were not demonstrable
that the population of Rome was a composite population at a very early
time, the fact would remain that the Romans themselves believed it
to be composed of three elements: they believed that Latins, Sabines
and Etruscans had been welded together under the Kings, and that the
titular distinction between patrician and plebeian families survived
from a further process of incorporation of aliens; thus there was
ancient authority for innovation in such an important matter as the
admission of new citizens. Athens was in this respect more conservative
than Rome; the citizens of the most democratic state of the ancient
world boasted of their pure native descent, while the conservative
Roman found in his history a continuous process of immigration to the
hills by the Tiber, repeated coalition, continued absorption.
While the Roman Senate was in one aspect a body of trained lawyers,
in another it was a body of priests. The evolution of the priesthood
as a separate profession is a comparatively modern process. In the
history of Rome we see the first step in the process, the changes by
which the men appointed to maintain the state religion or to conduct
the ceremonial observances paid to particular gods became elected
officials, after having been the representatives of certain families
upon whom those obligations rested. The duties of religion which had
previously been family duties became state duties; but this change did
not relieve the Senate of its charge of the national religion. Just as
the Senator was an expert in law, so he was an expert in ritual; he did
not discuss questions of faith, but he decided points of ceremonial.
Though the Colleges of Pontiffs and Augurs were not in the later days
of the Republic necessarily drawn from the Senators, and though for a
short period a restricted form of public election was applied to the
former, practically the Senatorial families held these offices in their
own hands, and the power which they thus wielded could only be taken
from them by the expedient of combining in the person of the chief of
the State the functions of chief Pontifex and chief Augur. Any public
business could be suspended by the declaration of a Pontifex or Augur,
that it was contrary to established ritual, or that the gods had
by means of recognized signs and omens signified the occasion to be
unfavourable.
The Senate was also an assembly of heads of families; when a Roman
youth of Senatorial descent came of age, his father presented him to
the Senate. Though inside his family the father was omnipotent, the
Senate decided what actually was the family law; and in this respect
the Senate dealt with the family, not with the individual. If the
head of the family failed to rule his family properly, and thereby
occasioned scandal, he might be marked by the Censor and degraded from
his rank. In the family were included many persons whom we consider
to be outside the family; slaves, freedmen and certain clients had
rights as well as duties; the father of a family who contravened the
regulations of the Senate in his relations with such persons caused
a scandal, no less than in irregular relations with his wife or
children. We are frequently surprised in reading the history of the
early Emperors by the freedom with which they appeal to the Senate for
commiseration in their private misfortunes, by their habit of assuming
that the Senate is interested in their family affairs, but in this they
were only acting as any other Senator would act. The point of view may
be well illustrated from the procedure in divorce; divorce was a purely
family affair with the Romans; a wife guilty of misconduct was divorced
by her husband without any appeal to a law court. With ourselves a man
is at liberty to apply for a divorce; if under certain circumstances
he does not do so, we may admire his forbearance or despise his
laxity, but there is no constituted authority which can force him to
start an action; whereas a Roman Senator who permitted flagrantly
scandalous conduct on the part of his wife could be, and sometimes was,
degraded by the Censor, the good order of the State being imperilled
by the irregularities in his family; cruelty to slaves or neglect of
freedmen and clients were in the same way matters that came under the
observation of the Senate, and of the Emperors as the leaders of the
Senate.
These characteristics of the Roman Senate, that it was broadly speaking
an assembly of lawyers, priests and heads of families, of which any
individual might and often did combine all three functions in his
own person, were most strongly marked in the period during which it
commanded the respect of Polybius and Judas Maccabæus; the policy of
Augustus was to restore these characteristics; they were partly in
abeyance during the period of the greatest prosperity of the Republic,
when the attention of the individual Senator of Rome was irresistibly
drawn to the administration of her conquered territories, and to the
regulation of her relations with potentates on the confines of her
Empire.
At the beginning of the first century before the Christian era, the
Senate was divided into parties evolved by the new responsibilities,
and the changes in opinion caused by the influx of Greek ideals. The
most important problem was the administration of the provinces, but
along with it there had to be considered the organization of the
internal constitution of the city itself. Thus there were two groups
of reformers, those who were chiefly concerned in the adjustment of
the relations between the city and the Empire, and those who were more
actively interested in the reorganization of her local constitution.
The questions which presented themselves to the individual Senator were
three in number: first, were the provinces to be governed rigorously as
conquered territories, or were they to be admitted to a share in their
own government and the government of the Empire? secondly, if they were
to be governed by Rome and for Rome, was the administration to continue
to be exclusively in the hands of the Senate? thirdly, whatever might
be Rome’s relations with her provinces, was it not necessary to give
reality to those germs of popular government which existed in the Roman
constitution, and to make the Senate directly or indirectly an elected
assembly of notable men?
Thus a Senator might be Conservative with reference to the provinces,
but liberal with reference to the city, or he might hold that the
Senate must be the centre of government, and yet be capable of such
internal reforms as to make it the best protector of provincial
interests; or he might say that the rule of the Senate was good for the
city, but unworkable in the provinces.
Outside the Senate there was the Equestrian Order representing both
the Civil Administration of the Empire, and non-Roman as well as
Roman financiers, supporting any man or group in the Senate which
seemed favourable to its interests; there was also the body of Roman
citizens partly composed of men who were still bound by various ties to
individual members of the Senate, and partly of men who had served in
the Roman armies, and supported the policy of distinguished generals by
whom they were organized and in various ways paid for their help.
A peculiar quality of the Roman Senate was the romantic affection with
which it was regarded by its members and adherents; it was no mere
house of representatives; it was a dynasty. Men not only in Rome, but
in the provinces, tolerated its scandalous misgovernment after the
third Punic War, as men have tolerated the government of a bad King
without losing their faith in monarchy and their affection for the
institution. Hard-headed politicians may see in the suicide of Cato at
Utica nothing but contemptible weakness; to them the Roman Senate is
only one of many political organizations; but Cato’s act was otherwise
regarded in antiquity. To find a parallel we have to search among those
adherents of the Stuart Dynasty in England and Scotland, to whom the
cause for which they fought was not merely a political cause, but a
religion. We do not condemn men who committed political suicide after
1715, and abstained from public affairs, or even left their country;
we feel that, for men believing as they did, no other course was open;
it was precisely in this light that the death of Cato appeared to his
contemporaries.
The resistance of the Senate to the various reforms pressed upon it
from 131 B.C. onwards has been represented as simply a resistance of
vested interests; that it was so in some measure even at first, and
increasingly so as time went on, is indisputably true, but Cato did
not kill himself as a martyr to the cause of vested interests. The
Senatorial position was that of a monarch by divine right; the Senate
could not accept reforms in deference to external pressure without in a
measure abdicating; it was in itself both Church and Crown; it could no
more make terms with a Gracchus or a Livius Drusus than could Charles
I. with a Pym or a Cromwell.
This point has been largely concealed from us by the Greek influences
under which the history of Rome has been written; we are tempted to
think of the Roman Senate as of the Athenian Boulé, as of an Upper
House, whose powers and privileges could be curtailed or prescribed
at the will of a popular assembly; but to concede that point was to
concede everything. The bad faith of the Roman Senate, its desperate
expedients to maintain its position alike against the rising power
of the Army, the organization of the Equestrians, the body of Roman
citizens, or the reformers within its ranks, become in a measure
respectable when we reflect that the Senate believed itself to rule by
divine right.
Similarly faith in the detestation of monarchy ascribed to the Senate
is the result, in some measure, of giving undue weight to Greek
prejudices, and to the words of men who were unconsciously enthralled
by them.
The Senate so arranged matters that no member of the oligarchy should
acquire a preponderant position, and disturb the equality which in
theory prevailed between individual Senators; hence various enactments
as to the intervals between holding the Consulate twice over, the
limited period of a provincial appointment and the disbanding of a
Consul’s army outside Rome. In the decadence of the Senate piracy was
not quelled in the Mediterranean, and inadequate provision was made to
repel the Teutonic invasion from the North, because the immense power
wielded by the man to whom either of these enterprises was entrusted
threatened to overbalance the constitution. The Senate felt, and
rightly felt, that its greatness had been achieved by the relatively
unselfish co-operation of its members; when the sentiment, which had
rendered that unselfish co-operation possible, had given way before
the immense opportunities offered by provincial governorships and the
successful command of Roman armies, the Senate endeavoured to restore
the effects of that sentiment by insisting more and more strongly
upon regulations which tended to equality; but this was something
different from the Greek antipathy to the tyrant. Equality between its
members was a fundamental theory of the Senate, but it had so little
antipathy to monarchy as to provide for the rule of one man in the
event of great dangers. The Dictatorship, so long as it lasted, was an
absolute monarchy; to the Greek a Dictator was the negation of civil
order; hence in a Greek town the assumption of the supreme power by
one man, however great the emergency, was a revolutionary proceeding;
at Rome the appointment of a Dictator was a recognized constitutional
expedient.
Thus the divine right of the Senate did not exclude the possibility
of making one of their own number supreme executive magistrate; and
monarchy was abhorrent to the Senator, not because it was a thing
contrary to nature, as some Greek philosophers held, but because it
disturbed the balance of the Senatorial constitution.
By laying undue stress on the Senatorial objection to the rule of one
man, writers of the school of Cicero have concealed the real position
of an orthodox Roman Senator. Cæsar was hated by the old Senatorial
party, less because he was in fact King than because he had changed the
constitution of the Senate, and endeavoured to make it a council of the
Empire by inviting provincials to its ranks.
There is this essential difference between the suicide of Cato and the
subsequent suicide of Brutus: the former was a legitimist, to whom the
defeat of his cause meant the destruction of all that was holy, the
final collapse of law and order and religion; the latter, if an honest
man at all, was a fanatical doctrinaire who had been disappointed in
his expectation of regenerating society; Cato died because he could not
live under the new conditions, Brutus partly because he was disgusted
with his failure, partly because he preferred death by his own hand to
death at the hands of the ruffians of Antonius.
The conservative Senator objected to a King, it is true, but he
objected no less and perhaps even more to such a reconstitution of the
Senate as commended itself to Cicero and other reformers, who wished to
remodel the political arrangements of Rome in terms of the Athenian
Constitution or of some less extravagant ideal republic than that
imagined by Plato.
While the Senate contained a party of irreconcilables whom we may
call the Legitimists, it also contained a party who believed in the
possibility of a genuine reform, and adaptation of the Senatorial
constitution to the needs of the Empire; there was a liberal tradition
as well as a conservative tradition inside the Senate; the men who
had gradually broken down the barriers between Patrician and Plebeian
in the early days of the Republic, and who had gone some distance in
admitting the allies to a place in the constitution, had been succeeded
by the men who had recognized the claims of the Equestrian order, and
saw that some equitable distribution of the rewards of victory among
the rank and file of the army was necessary to the well being of the
State. The names of the men who took the lead in forcing reforms upon
the Senate are Senatorial names, Glaucia, Fimbria, Saturninus, Livius
Drusus, Cinna, no less than the Gracchi were Senators; and though they
were ill advised in mistaking the Roman mob for a constitutional party,
they were not demagogues in the sense that Danton was a demagogue; they
belonged to the body which they wished to reform; their methods were
injudicious, as was proved by the result, but it is not easy to see
what other methods were open to them. After Cicero had pledged himself
to the cause of the Conservative party in the Senate, he spoke of these
men and other men who had proposed and passed measures of reform in
terms of unmeasured reprobation, but we are no more bound to accept
his condemnation as historically accurate than we are at liberty to
accept the current terminology of political abuse in our own day as
indicating anything more than the malignity of the speaker. Even the
moderate reformer is stigmatized as a demagogue by those who object to
his reforms.
Had Marius been as capable a politician as he was a general, it is
possible that the reform party in the Senate might have brought about
a gradual transition from the rule of the Senate to the inevitable
monarchy, but the incapacity of Marius gave the reins to violence, and
brought on the proscription of Cinna to be followed by the reaction and
yet more violent proscription of Sulla.
Constitutional reform failed, but the breed of constitutional
reformers was not extinguished even by the second proscription. Sulla
had recognized this party, and had adopted two of its projects of
reform; he had, in a measure, unified Italy, and he had provided for a
quasi-representative constitution of the Senate by ordaining that men
who had held the elective office of Quæstor should after their term of
office pass into the Senatorial ranks; this did not exclude other means
of admission to the Senate, but it partly broke down the exclusive
system of co-optation through the Censor, and it gave a capable and
pushing man from an Italian municipality, such as Cicero, a better
chance of attaining the highest position at Rome.
The party of moderate reform was divided into two sections, the section
which recognized the Empire, and the section which thought in the
first place of the city; the former became the mainstay of Cæsar, the
latter soon ceased to have any practical weight except in literature.
When the great crisis came, it ranged itself for the most part with
the Pompeians; but the former section was not able to accept Cæsar’s
radical reforms, and became after his death anti-Cæsarian, till after
being frightened by the extravagance of Antonius and the brigandage of
Sextus Pompeius, it was won over by the moderate and cautious policy of
Octavian. These were the men who fought beside Brutus and Cassius, and
joined Lucius Antonius in the Perusine war, but when they saw that the
choice was between anarchy and Octavian, gave their adhesion finally to
his cause; the reign of Augustus bears the impress of their influence
throughout. Among them were two men of note, Livius Drusus, father of
Livia and grandfather of Tiberius, and Tiberius Nero, the father of the
future Emperor.
The reign of Augustus did not finally conclude the reign of the Senate,
but it removed from practical politics the party who could not see
beyond the city State, and it definitely concluded the pretensions of
the rabble of the streets to act in the capacity of the Roman people.
It was only gradually that the Senate became an advisory council to the
Emperors, recruited from the distinguished officials of the Empire, or
from the legal profession; it retained for a long time its hereditary
and domestic character.
It might have been anticipated that there would be a clear division
of functions between the officials of Greater Rome and of the city
itself, that the Emperor with his staff would manage the concerns of
the Empire, and the Senate would govern the city; but it was long
before the Government of the city sank to the position of an ordinary
municipal Government. The division of the provinces into Senatorial
and Imperial ultimately broke down, and was indeed from the beginning
formal rather than real; it was a compromise by which the old nobility
was conciliated, but the honours conceded to the old aristocracy
became more and more titular as time went on; the Roman Senate could
not step down, and it refused to accept the position of the city
Council of Rome, or even of the Council of Italy. It was never formally
disestablished, but it was eventually crowded out, though it was
still sufficiently self-conscious, when Tacitus and the younger Pliny
were writing, to resent the predominance of the Imperial Household,
and to worship the traditions of an omnipotence which it believed to
have been the realization of those dreams of liberty so dear to the
Greek philosophers. So long as Rome continued to be the centre of the
administration of the Empire, the Senate of Rome was always something
more than a municipal council, and the name of the body which had once
governed the Empire was always dignified by associations which could
attach to no other assembly.
IV
Slavery
The politician of to-day is as incapable of imagining a wholesome state
of society in which slavery is a recognized and universal institution,
as he is of believing that any political constitution can be really
good without representative government. The Romans, however, contrived
to civilize the world, so far as it was accessible to them, without
representative government and with slavery. Slavery is, in fact, a
necessary condition in the evolution of civilized society, and was an
important factor in the evolution of the Roman Empire. Teuton and Celt,
no less than Greek or Roman or Phœnician, equally used and doubtless
equally abused the institution; no race can claim to have been at all
periods of its history free from the curse.
In order to arrive at a fair conception of slavery as it existed
in antiquity, it is necessary to clear our minds once for all of
prepossessions created by the conditions of slavery in America or other
countries, where the slave and the slave owner have been distinguished
by such marked racial differences as exist between the white man and
the coloured man, between the highly civilized man and the savage. Even
in the department of negro slavery, as practised in America, there
are two sides to the question, and _Tom Cringle’s Log_ must be set
against _Uncle Tom’s Cabin_. Mr. T. Booker Washington, an American
negro who has done perhaps more for the emancipated black men than any
living man, himself born a slave, refuses to join in the wholesale
condemnation of American slave owners; to him the mischief of the
institution lay less in its injurious effects upon the negro than upon
the white man, who despised wholesome industry, and tended to become
useless rather than cruel.