The History of Rome. Book II

by Theodor Mommsen

  In a similar way the decision in civil procedure was withdrawn from the supreme magistracy, inasmuch as the right of the king to transfer an individual process for decision to a deputy was converted into the duty of the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 admittin
g 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].