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Various - "Punchinello, Vol. II., Issue 31, October 29, 1870"

Jacob Abbott - "Cleopatra"

Roger McGuinn - "Audio: Pretty Saro"

Charles M. Skinner - "The Isle of Manhattoes and Nearby"

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The History of Rome (Volumes 1 5) - Theodor Mommsen

T >> Theodor Mommsen >> The History of Rome (Volumes 1 5)


The Senate and the Resolutions of the Community: -Patrum Auctoritas-


But it was not merely in so far as the idea of a perpetual kingdom
found its living expression in this assembly, that it was an essential
member of the Roman constitution. The council of elders, indeed,
had no title to interfere with the official functions of the king.
The latter doubtless, in the event of his being unable personally
to lead the army or to decide a legal dispute, took his deputies
at all times from the senate; for which reason subsequently the
highest posts of command were regularly bestowed on senators alone,
and senators were likewise employed by preference as jurymen. But
the senate, in its collective capacity, was never consulted in
the leading of the army or in the administration of justice; and
therefore there was no right of military command and no jurisdiction
vested in the senate of the later Rome. On the other hand the
council of elders was held as called to the guardianship of the
existing constitution against encroachments by the king and the
burgesses. On the senate devolved the duty of examining every
resolution adopted by the burgesses at the suggestion of the king,
and of refusing to confirm it if it seemed to violate existing
rights; or, which was the same thing, in all cases where a resolution
of the community was constitutionally requisite--as on every
alteration of the constitution, on the reception of new burgesses,
on the declaration of an aggressive war--the council of elders had
a right of veto. This may not indeed be regarded in the light of
legislation pertaining jointly to the burgesses and the senate,
somewhat in the same way as to the two chambers in the constitutional
state of the present day; the senate was not so much law-maker as
law-guardian, and could only cancel a decree when the community
seemed to have exceeded its competence--to have violated by its
decree existing obligations towards the gods or towards foreign
states or organic institutions of the community. But still it was
a matter of the greatest importance that--to take an example--when
the Roman king had proposed a declaration of war and the burgesses
had converted it into a decree, and when the satisfaction which
the foreign community seemed bound to furnish had been demanded in
vain, the Roman envoy invoked the gods as witnesses of the wrong
and concluded with the words, "But on these matters we shall consult
the elders at home how we may obtain our rights;" it was only when
the council of elders had declared its consent, that the war now
decreed by the burgesses and approved by the senate was formally
declared. Certainly it was neither the design nor the effect of
this rule to occasion a constant interference of the senate with
the resolutions of the burgesses, and by such guardianship to divest
them of their sovereign power; but, as in the event of a vacancy
in the supreme office the senate secured the continuance of the
constitution, we find it here also as the shield of legal order in
opposition even to the supreme power--the community.


The Senate As State-Council


With this arrangement was probably connected the apparently very
ancient usage, in virtue of which the king previously submitted
to the senate the proposals that were to be brought before the
burgesses, and caused all its members one after another to give their
opinion on the subject. As the senate had the right of cancelling
the resolution adopted, it was natural for the king to assure
himself beforehand that no opposition was to be apprehended from
that quarter; as indeed in general, on the one hand, it was in
accordance with Roman habits not to decide matters of importance
without having taken counsel with other men, and on the other hand
the senate was called, in virtue of its very composition, to act as
a state-council to the ruler of the community. It was from this
usage of giving counsel, far more than from the prerogatives which
we have previously described, that the subsequent extensive powers
of the senate were developed; but it was in its origin insignificant
and really amounted only to the prerogative of the senators to
answer, when they were asked a question. It may have been usual
to ask the previous opinion of the senate in affairs of importance
which were neither judicial nor military, as, for instance--apart
from the proposals to be submitted to the assembly of the people--in
the imposition of task-works and taxes, in the summoning of the
burgesses to war-service, and in the disposal of the conquered
territory; but such a previous consultation, though usual, was not
legally necessary. The king convoked the senate when he pleased,
and laid before it his questions; no senator might declare his
opinion unasked, still less might the senate meet without being
summoned, except in the single case of its meeting on occasion
of a vacancy to settle the order of succession in the office of
-interrex-. That the king was moreover at liberty to call in and
consult other men whom he trusted alongside of, and at the same
time with, the senators, is in a high degree probable. The advice,
accordingly, was not a command; the king might omit to comply with
it, while the senate had no other means for giving practical effect
to its views except the already-mentioned right of cassation, which
was far from being universally applicable. "I have chosen you,
not that ye may be my guides, but that ye may do my bidding:" these
words, which a later author puts into the mouth of king Romulus,
certainly express with substantial correctness the position of the
senate in this respect.


The Original Constitution of Rome


Let us now sum up the results. Sovereignty, as conceived by
the Romans, was inherent in the community of burgesses; but the
burgess-body was never entitled to act alone, and was only entitled
to co-operate in action, when there was to be a departure from
existing rules. By its side stood the assembly of the elders of
the community appointed for life, virtually a college of magistrates
with regal power, called in the event of a vacancy in the royal
office to administer it by means of their own members until it
should be once more definitively filled, and entitled to overturn
the illegal decrees of the community. The royal power itself was,
as Sallust says, at once absolute and limited by the laws (-imperium
legitimum-); absolute, in so far as the king's command, whether
righteous or not, must in the first instance be unconditionally
obeyed; limited, in so far as a command contravening established
usage and not sanctioned by the true sovereign--the people--carried
no permanent legal consequences. The oldest constitution of Rome
was thus in some measure constitutional monarchy inverted. In
that form of government the king is regarded as the possessor and
vehicle of the plenary power of the state, and accordingly acts of
grace, for example, proceed solely from him, while the administration
of the state belongs to the representatives of the people and to
the executive responsible to them. In the Roman constitution the
community of the people exercised very much the same functions as
belong to the king in England: the right of pardon, which in England
is a prerogative of the crown, was in Rome a prerogative of the
community; while all government was vested in the president of the
state.

If, in conclusion, we inquire as to the relation of the state itself
to its individual members, we find the Roman polity equally remote
from the laxity of a mere defensive combination and from the
modern idea of an absolute omnipotence of the state. The community
doubtless exercised power over the person of the burgess in the
imposition of public burdens, and in the punishment of offences and
crimes; but any special law inflicting, or threatening to inflict,
punishment on an individual on account of acts not universally
recognized as penal always appeared to the Romans, even when there
was no flaw in point of form, an arbitrary and unjust proceeding.
Far more restricted still was the power of the community in respect
of the rights of property and the rights of family which were
coincident, rather than merely connected, with these; in Rome the
household was not absolutely annihilated and the community aggrandized
at its expense, as was the case in the police organization of
Lycurgus. It was one of the most undeniable as well as one of the
most remarkable principles of the primitive constitution of Rome,
that the state might imprison or hang the burgess, but might not take
away from him his son or his field or even lay permanent taxation
on him. In these and similar things the community itself was
restricted from encroaching on the burgess, nor was this restriction
merely ideal; it found its expression and its practical application
in the constitutional veto of the senate, which was certainly entitled
and bound to annul any resolution of the community contravening
such an original right. No community was so all-powerful within
its own sphere as the Roman; but in no community did the burgess
who conducted himself un-blameably live in an equally absolute
security from the risk of encroachment on the part either of his
fellow-burgesses or of the state itself.

These were the principles on which the community of Rome governed
itself--a free people, understanding the duty of obedience, clearly
disowning all mystical priestly delusion, absolutely equal in the
eye of the law and one with another, bearing the sharply-defined
impress of a nationality of their own, while at the same time (as
will be afterwards shown) they wisely as well as magnanimously
opened their gates wide for intercourse with other lands. This
constitution was neither manufactured nor borrowed; it grew up
amidst and along with the Roman people. It was based, of course,
upon the earlier constitutions--the Italian, the Graeco-Italian,
and the Indo-Germanic; but a long succession of phases of political
development must have intervened between such constitutions as the
poems of Homer and the Germania of Tacitus delineate and the oldest
organization of the Roman community. In the acclamation of the
Hellenic and in the shield-striking of the Germanic assemblies there
was involved an expression of the sovereign power of the community;
but a wide interval separated forms such as these from the organized
jurisdiction and the regulated declaration of opinion of the Latin
assembly of curies. It is possible, moreover, that as the Roman
kings certainly borrowed the purple mantle and the ivory sceptre
from the Greeks (not from the Etruscans), the twelve lictors also
and various other external arrangements were introduced from abroad.
But that the development of the Roman constitutional law belonged
decidedly to Rome or, at any rate, to Latium, and that the borrowed
elements in it are but small and unimportant, is clearly demonstrated
by the fact that all its ideas are uniformly expressed by words of
Latin coinage. This constitution practically established for all
time the fundamental conceptions of the Roman state; for, as long
as there existed a Roman community, in spite of changes of form
it was always held that the magistrate had absolute command, that
the council of elders was the highest authority in the state, and
that every exceptional resolution required the sanction of the
sovereign or, in other words, of the community of the people.




Notes for Book I Chapter V


1. This was not merely the case under the old religious marriage
(-matrimonium confarreatione-); the civil marriage also (-matrimonium
consensu-), although not in itself giving to the husband proprietary
power over his wife, opened up the way for his acquiring this
proprietary power, inasmuch as the legal ideas of "formal delivery"
(-coemptio-), and "prescription" (-usus-), were applied without
ceremony to such a marriage. Till he acquired it, and in particular
therefore during the period which elapsed before the completion of
the prescription, the wife was (just as in the later marriage by
-causae probatio-, until that took place), not -uxor-, but -pro
uxore-. Down to the period when Roman jurisprudence became a
completed system the principle maintained its ground, that the wife
who was not in her husband's power was not a married wife, but only
passed as such (-uxor tantummodo habetur-. Cicero, Top. 3, 14).

2. The following epitaph, although belonging to a much later period,
is not unworthy to have a place here. It is the stone that speaks:--

-Hospes, quod deico, paullum est. Asta ac pellige. Heic est
sepulcrum haud pulcrum pulcrai feminae, Nomen parentes nominarunt
Claudiam, Suom mareitum corde dilexit sovo, Gnatos duos creavit,
horunc alterum In terra linquit, alium sub terra locat; Sermone
lepido, tum autem incessu commodo, Domum servavit, lanam fecit.
Dixi. Abei.-

(Corp. Inscr. Lat. 1007.)

Still more characteristic, perhaps, is the introduction of wool-spinning
among purely moral qualities; which is no very unusual occurrence
in Roman epitaphs. Orelli, 4639: -optima et pulcherrima, lanifica
pia pudica frugi casta domiseda-. Orelli, 4861: -modestia probitate
pudicitia obsequio lanificio diligentia fide par similisque cetereis
probeis femina fuit-. Epitaph of Turia, i. 30: domestica bona
pudicitiae, opsequi, comitatis, facilitatis, lanificiis [tuis
adsiduitatis, religionis] sine superstitione, ornatus non conspiciendi,
cultus modici.

3. I. III. Clan-villages

4. Dionysius affirms (v. 25) that lameness excluded from the supreme
magistracy. That Roman citizenship was a condition for the regal
office as well as for the consulate, is so very self-evident as to
make it scarcely worth while to repudiate expressly the fictions
respecting the burgess of Cures.

5. I. III. Clan-villages

6. Even in Rome, where the simple constitution of ten curies otherwise
early disappeared, we still discover one practical application of
it, and that singularly enough in the very same formality which we
have other reasons for regarding as the oldest of all those that
are mentioned in our legal traditions, the -confarreatio-. It seems
scarcely doubtful that the ten witnesses in that ceremony had the
same relation to the constitution of ten curies the thirty lictors
had to the constitution of thirty curies.

7. This is implied in their very name. The "part" (-tribus-) is,
as jurists know, simply that which has once been or may hereafter
come to be a whole, and so has no real standing of its own in the
present.

8. I. II. Primitive Races of Italy

9. -Quiris-, -quiritis-, or -quirinus- is interpreted by the
ancients as "lance-bearer," from -quiris- or -curis- = lance and
-ire-, and so far in their view agrees with -samnis-, -samnitis-
and -sabinus-, which also among the ancients was derived from
--saunion--, spear. This etymology, which associates the word
with -arquites-, -milites-, -pedites-, -equites-, -velites- --those
respectively who go with the bow, in bodies of a thousand, on
foot, on horseback, without armour in their mere over-garment--may
be incorrect, but it is bound up with the Roman conception of a
burgess. So too Juno quiritis, (Mars) quirinus, Janus quirinus,
are conceived as divinities that hurl the spear; and, employed in
reference to men, -quiris- is the warrior, that is, the full burgess.
With this view the -usus loquendi- coincides. Where the locality
was to be referred to, "Quirites" was never used, but always "Rome"
and "Romans" (-urbs Roma-, -populus-, -civis-, -ager Romanus-),
because the term -quiris- had as little of a local meaning as
-civis- or -miles-. For the same reason these designations could
not be combined; they did not say -civis quiris-, because both
denoted, though from different points of view, the same legal
conception. On the other hand the solemn announcement of the
funeral of a burgess ran in the words "this warrior has departed
in death" (-ollus quiris leto datus-); and in like manner the king
addressed the assembled community by this name, and, when he sat in
judgment, gave sentence according to the law of the warrior-freemen
(-ex iure quiritium-, quite similar to the later -ex iure civili-).
The phrase -populus Romanus-, -quirites- (-populus Romanus quiritium-is
not sufficiently attested), thus means "the community and the
individual burgesses," and therefore in an old formula (Liv. i.
32) to the -populus Romanus- are opposed the -prisci Latini-, to
the -quirites- the -homines prisci Latini- (Becker, Handb. ii. 20
seq.)

In the face of these facts nothing but ignorance of language and of
history can still adhere to the idea that the Roman community was
once confronted by a Quirite community of a similar kind, and that
after their incorporation the name of the newly received community
supplanted in ritual and legal phraseology that of the receiver.--Comp.
iv. The Hill-Romans On The Quirinal, note.

10. Among the eight ritual institutions of Numa, Dionysius (ii. 64)
after naming the Curiones and Flamines, specifies as the third the
leaders of the horsemen (--oi eigemones ton Kelerion--). According to
the Praenestine calendar a festival was celebrated at the Comitium
on the 19th March [adstantibus pon]tificibus et trib(unis) celer(um).
Valerius Antias (in Dionys. i. 13, comp. iii. 41) assigns to
the earliest Roman cavalry a leader, Celer, and three centurions;
whereas in the treatise De viris ill. i, Celer himself is termed
-centurio-. Moreover Brutus is affirmed to have been -tribunus
celerum- at the expulsion of the kings (Liv. i. 59), and according
to Dionysius (iv. 71) to have even by virtue of this office made the
proposal to banish the Tarquins. And, lastly, Pomponius (Dig. i.
2, 2, 15, 19) and Lydus in a similar way, partly perhaps borrowing
from him (De Mag. i. 14, 37), identify the -tribunus celerum- with
the Celer of Antias, the -magister equitum- of the dictator under
the republic, and the -Praefectus praetorio- of the empire.

Of these-the only statements which are extant regarding the -tribuni
celerum- --the last mentioned not only proceeds from late and quite
untrustworthy authorities, but is inconsistent with the meaning of
the term, which can only signify "divisional leaders of horsemen,"
and above all the master of the horse of the republican period, who
was nominated only on extraordinary occasions and was in later times
no longer nominated at all, cannot possibly have been identical with
the magistracy that was required for the annual festival of the
19th March and was consequently a standing office. Laying aside, as
we necessarily must, the account of Pomponius, which has evidently
arisen solely out of the anecdote of Brutus dressed up with
ever-increasing ignorance as history, we reach the simple result that
the -tribuni celerum- entirely correspond in number and character
to the -tribuni militum-, and that they were the leaders-of-division
of the horsemen, consequently quite distinct from the -magister
equitum-.

11. This is indicated by the evidently very old forms -velites-and
-arquites-and by the subsequent organization of the legion.

12. I. V. The King

13. I. IV. The Tibur and Its Traffic

14. -Lex- ("that which binds," related to -legare-, "to bind
to something") denotes, as is well known, a contract in general,
along, however, with the connotation of a contract whose terms the
proposer dictates and the other party simply accepts or declines;
as was usually the case, e. g. with public -licitationes-. In the
-lex publica populi Romani- the proposer was the king, the acceptor
the people; the limited co-operation of the latter was thus
significantly indicated in the very language.




CHAPTER VI

The Non-Burgesses and the Reformed Constitution



Amalgamation of the Palatine and Quirinal Cities


The history of every nation, and of Italy more especially, is a
--synoikismos-- on a great scale. Rome, in the earliest form in
which we have any knowledge of it, was already triune, and similar
incorporations only ceased when the spirit of Roman vigour had wholly
died away. Apart from that primitive process of amalgamation of
the Ramnes, Titles, and Luceres, of which hardly anything beyond the
bare fact is known, the earliest act of incorporation of this sort
was that by which the Hill-burgesses became merged in the Palatine
Rome. The organization of the two communities, when they were
about to be amalgamated, may be conceived to have been substantially
similar; and in solving the problem of union they would have to
choose between the alternatives of retaining duplicate institutions
or of abolishing one set of these and extending the other to the whole
united community. They adopted the former course with respect to
all sanctuaries and priesthoods. Thenceforth the Roman community
had its two guilds of Salii and two of Luperci, and as it had
two forms of Mars, it had also two priests for that divinity--the
Palatine priest, who afterwards usually took the designation of
priest of Mars, and the Colline, who was termed priest of Quirinus.
It is likely, although it can no longer be proved, that all the
old Latin priesthoods of Rome--the Augurs, Pontifices, Vestals,
and Fetials--originated in the same way from a combination of the
priestly colleges of the Palatine and Quirinal communities. In
the division into local regions the town on the Quirinal hill was
added as a fourth region to the three belonging to the Palatine
city, viz. the Suburan, Palatine, and suburban (-Esquiliae-). In
the case of the original --synoikismos-- the annexed community was
recognized after the union as at least a tribe (part) of the new
burgess-body, and thus had in some sense a continued political
existence; but this course was not followed in the case of the
Hill-Romans or in any of the later processes of annexation. After
the union the Roman community continued to be divided as formerly
into three tribes, each containing ten wardships (-curiae-); and the
Hill-Romans--whether they were or were not previously distributed
into tribes of their own--must have been inserted into the existing
tribes and wardships. This insertion was probably so arranged that,
while each tribe and wardship received its assigned proportion of
the new burgesses, the new burgesses in these divisions were not
amalgamated completely with the old; the tribes henceforth presented
two ranks: the Tities, Ramnes, and Luceres being respectively
subdivided into first and second (-priores-, -posteriores-). With
this division was connected in all probability that arrangement
of the organic institutions of the community in pairs, which meets
us everywhere. The three pairs of Sacred Virgins are expressly
described as representatives of the three tribes with their first
and second ranks; and it may be conjectured that the pair of Lares
worshipped in each street had a similar origin. This arrangement
is especially apparent in the army: after the union each half-tribe
of the tripartite community furnished a hundred horsemen, and the
Roman burgess cavalry was thus raised to six "hundreds," and the
number of its captains probably from three to six. There is no
tradition of any corresponding increase to the infantry; but to
this origin we may refer the subsequent custom of calling out the
legions regularly two by two, and this doubling of the levy probably
led to the rule of having not three, as was perhaps originally
the case, but six leaders-of-division to command the legion. It
is certain that no corresponding increase of seats in the senate
took place: on the contrary, the primitive number of three hundred
senators remained the normal number down to the seventh century;
with which it is quite compatible that a number of the more prominent
men of the newly annexed community may have been received into the
senate of the Palatine city. The same course was followed with
the magistracies: a single king presided over the united community,
and there was no change as to his principal deputies, particularly
the warden of the city. It thus appears that the ritual institutions
of the Hill-city were continued, and that the doubled burgess-body
was required to furnish a military force of double the numerical
strength; but in other respects the incorporation of the Quirinal
city into the Palatine was really a subordination of the former to
the latter. If we have rightly assumed that the contrast between
the Palatine old and the Quirinal new burgesses was identical
with the contrast between the first and second Tities, Ramnes, and
Luceres, it was thus the -gentes-of the Quirinal city that formed
the "second" or the "lesser." The distinction, however, was
certainly more an honorary than a legal precedence. At the taking
of the vote in the senate the senators taken from the old clans
were asked before those of the "lesser." In like manner the Colline
region ranked as inferior even to the suburban (Esquiline) region
of the Palatine city; the priest of the Quirinal Mars as inferior
to the priest of the Palatine Mars; the Quirinal Salii and Luperci
as inferior to those of the Palatine. It thus appears that the
--synoikismos--, by which the Palatine community incorporated that
of the Quirinal, marked an intermediate stage between the earliest
--synoikismos-- by which the Tities, Ramnes, and Luceres became
blended, and all those that took place afterwards. The annexed
community was no longer allowed to form a separate tribe in the new
whole, but it was permitted to furnish at least a distinct portion
of each tribe; and its ritual institutions were not only allowed to
subsist--as was afterwards done in other cases, after the capture
of Alba for example--but were elevated into institutions of the
united community, a course which was not pursued in any subsequent
instance.