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.
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.