The History of Rome, Book I - Theodor Mommsen
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Nothing is more certain than that this earliest constitutional
scheme did not originate in Rome; it was a primitive institution
common to all the Latins, and perhaps reached back to a period
anterior to the separation of the stocks. The Roman constitutional
tradition quite deserving of credit in such matters, while it
accounts historically for the other divisions of the burgesses,
makes the division into curies alone originate with the origin of
the city; and in entire harmony with that view not only does the
curial constitution present itself in Rome, but in the recently
discovered scheme of the organization of the Latin communities it
appears as an essential part of the Latin municipal system.
The essence of this scheme was, and remained, the distribution
into curies. The tribes ("parts") cannot have been an element of
essential importance for the simple reason that their occurrence
at all was, not less than their number, the result of accident;
where there were tribes, they certainly had no other significance
than that of preserving the remembrance of an epoch when such
"parts" had themselves been wholes.(7) There is no tradition that
the individual tribes had special presiding magistrates or special
assemblies of their own; and it is highly probable that in the
interest of the unity of the commonwealth the tribes which had
joined together to form it were never in reality allowed to have
such institutions. Even in the army, it is true, the infantry had
as many pairs of leaders as there were tribes; but each of these
pairs of military tribunes did not command the contingent of a
tribe; on the contrary each individual war-tribune, as well as all
in conjunction, exercised command over the whole infantry. The
clans were distributed among the several curies; their limits and
those of the household were furnished by nature. That the legislative
power interfered in these groups by way of modification, that it
subdivided the large clan and counted it as two, or joined several
weak ones together, there is no indication at all in Roman tradition;
at any rate this took place only in a way so limited that the
fundamental character of affinity belonging to the clan was not
thereby altered. We may not therefore conceive the number of the
clans, and still less that of the households, as a legally fixed
one; if the -curia- had to furnish a hundred men on foot and ten
horsemen, it is not affirmed by tradition, nor is it credible, that
one horseman was taken from each clan and one foot-soldier from
each house. The only member that discharged functions in the oldest
constitutional organization was the -curia-. Of these there were
ten, or, where there were several tribes, ten to each tribe. Such
a "wardship" was a real corporate unity, the members of which
assembled at least for holding common festivals. Each wardship was
under the charge of a special warden (-curio-), and had a priest of
its own (-flamen curialis-); beyond doubt also levies and valuations
took place according to curies, and in judicial matters the burgesses
met by curies and voted by curies. This organization, however,
cannot have been introduced primarily with a view to voting, for in
that case they would certainly have made the number of subdivisions
uneven.
Equality of the Burgesses
Sternly defined as was the contrast between burgess and non-burgess,
the equality of rights within the burgess-body was complete. No
people has ever perhaps equalled that of Rome in the inexorable
rigour with which it has carried out these principles, the one as
fully as the other. The strictness of the Roman distinction between
burgesses and non-burgesses is nowhere perhaps brought out with
such clearness as in the treatment of the primitive institution
of honorary citizenship, which was originally designed to mediate
between the two. When a stranger was, by resolution of the community,
adopted into the circle of the burgesses, he might surrender his
previous citizenship, in which case he passed over wholly into the
new community; but he might also combine his former citizenship with
that which had just been granted to him. Such was the primitive
custom, and such it always remained in Hellas, where in later
ages the same person not unfrequently held the freedom of several
communities at the same time. But the greater vividness with which
the conception of the community as such was realized in Latium
could not tolerate the idea that a man might simultaneously belong
in the character of a burgess to two communities; and accordingly,
when the newly-chosen burgess did not intend to surrender his
previous franchise, it attached to the nominal honorary citizenship
no further meaning than that of an obligation to befriend and protect
the guest (-jus hospitii-), such as had always been recognized as
incumbent in reference to foreigners. But this rigorous retention
of barriers against those that were without was accompanied by an
absolute banishment of all difference of rights among the members
included in the burgess community of Rome. We have already mentioned
that the distinctions existing in the household, which of course
could not be set aside, were at least ignored in the community; the
son who as such was subject in property to his father might thus,
in the character of a burgess, come to have command over his father
as master. There were no class-privileges: the fact that the Tities
took precedence of the Ramnes, and both ranked before the Luceres,
did not affect their equality in all legal rights. The burgess
cavalry, which at this period was used for single combat in front
of the line on horseback or even on foot, and was rather a select
or reserve corps than a special arm of the service, and which
accordingly contained by far the wealthiest, best-armed, and
best-trained men, was naturally held in higher estimation than the
burgess infantry; but this was a distinction purely -de facto-, and
admittance to the cavalry was doubtless conceded to any patrician.
It was simply and solely the constitutional subdivision of the
burgess-body that gave rise to distinctions recognized by the law;
otherwise the legal equality of all the members of the community
was carried out even in their external appearance. Dress indeed
served to distinguish the president of the community from its members,
the grown-up man under obligation of military service from the boy
not yet capable of enrolment; but otherwise the rich and the noble
as well as the poor and low-born were only allowed to appear in
public in the like simple wrapper (-toga-) of white woollen stuff.
This complete equality of rights among the burgesses had beyond
doubt its original basis in the Indo-Germanic type of constitution;
but in the precision with which it was thus apprehended and
embodied it formed one of the most characteristic and influential
peculiarities of the Latin nation. And in connection with this we
may recall the fact that in Italy we do not meet with any race of
earlier settlers less capable of culture, that had become subject
to the Latin immigrants.(8) They had no conquered race to deal
with, and therefore no such condition of things as that which gave
rise to the Indian system of caste, to the nobility of Thessaly
and Sparta and perhaps of Hellas generally, and probably also to
the Germanic distinction of ranks.
Burdens of the Burgesses
The maintenance of the state economy devolved, of course, upon
the burgesses. The most important function of the burgess was his
service in the army; for the burgesses had the right and duty of
bearing arms. The burgesses were at the same time the "body of
warriors" (-populus-, related to -populari-, to lay waste): in the
old litanies it is upon the "spear-armed body of warriors" (-pilumnus
poplus-) that the blessing of Mars is invoked; and even the designation
with which the king addresses them, that of Quirites,(9) is taken
as signifying "warrior." We have already stated how the army of
aggression, the "gathering" (-legio-), was formed. In the tripartite
Roman community it consisted of three "hundreds" (-centuriae-) of
horsemen (-celeres-, "the swift," or -flexuntes-, "the wheelers")
under the three leaders-of-division of the horsemen (-tribuni
celerum-)(10) and three "thousands" of footmen (-milties-) under
the three leaders-of-division of the infantry (-tribuni militum-),
the latter were probably from the first the flower of the general
levy. To these there may perhaps have been added a number
of light-armed men, archers especially, fighting outside of the
ranks.(11) The general was regularly the king himself. Besides
service in war, other personal burdens might devolve upon the burgesses;
such as the obligation of undertaking the king's commissions in
peace and in war,(12) and the task-work of tilling the king's lands
or of constructing public buildings. How heavily in particular the
burden of building the walls of the city pressed upon the community,
is evidenced by the fact that the ring-walls retained the name
of "tasks" (-moenia-). There was no regular direct taxation, nor
was there any direct regular expenditure on the part of the state.
Taxation was not needed for defraying the burdens of the community,
since the state gave no recompense for serving in the army, for
task-work, or for public service generally; so far as there was any
such recompense at all, it was given to the person who performed
the service either by the district primarily concerned in it, or by
the person who could not or would not himself serve. The victims
needed for the public service of the gods were procured by a tax
on actions at law; the defeated party in an ordinary process paid
down to the state a cattle-fine (-sacramentum-) proportioned to
the value of the object in dispute. There is no mention of any
regular presents to the king on the part of the burgesses. On the
other hand there flowed into the royal coffers the port-duties,(13)
as well as the income from the domains--in particular, the pasture
tribute (-scriptura-) from the cattle driven out upon the common
pasture, and the quotas of produce (-vectigalia-) which those
enjoying the use of the lands of the state had to pay instead of
rent. To this was added the produce of cattle-fines and confiscations
and the gains of war. In cases of need a contribution (-tributum-)
was imposed, which was looked upon, however, as a forced loan and
was repaid when the times improved; whether it fell upon the burgesses
generally, or only upon the --metoeci--, cannot be determined; the
latter supposition is, however, the more probable.
The king managed the finances. The property of the state,
however, was not identified with the private property of the king;
which, judging from the statements regarding the extensive landed
possessions of the last Roman royal house, the Tarquins, must have
been considerable. The ground won by arms, in particular, appears to
have been constantly regarded as property of the state. Whether and
how far the king was restricted by use and wont in the administration
of the public property, can no longer be ascertained; only the
subsequent course of things shows that the burgesses can never have
been consulted regarding it, whereas it was probably the custom to
consult the senate in the imposition of the -tributum- and in the
distribution of the lands won in war.
Rights of the Burgesses
The Roman burgesses, however, do not merely come into view as
furnishing contributions and rendering service; they also bore a
part in the public government. For this purpose all the members
of the community (with the exception of the women, and the children
still incapable of bearing arms)--in other words, the "spearmen"
(-quirites-) as in addressing them they were designated--assembled
at the seat of justice, when the king convoked them for the purpose
of making a communication (-conventio-, -contio-) or formally bade
them meet (-comitia-) for the third week (-in trinum noundinum-),
to consult them by curies. He appointed such formal assemblies
of the community to be held regularly twice a year, on the 24th of
March and the 24th of May, and as often besides as seemed to him
necessary. The burgesses, however, were always summoned not to
speak, but to hear; not to ask questions, but to answer. No one
spoke in the assembly but the king, or he to whom the king saw
fit to grant liberty of speech; and the speaking of the burgesses
consisted of a simple answer to the question of the king,
without discussion, without reasons, without conditions, without
breaking up the question even into parts. Nevertheless the Roman
burgess-community, like the Germanic and not improbably the primitive
Indo-Germanic communities in general, was the real and ultimate
basis of the political idea of sovereignty. But in the ordinary
course of things this sovereignty was dormant, or only had its
expression in the fact that the burgess-body voluntarily bound
itself to render allegiance to its president. For that purpose
the king, after he had entered on his office, addressed to the
assembled curies the question whether they would be true and loyal
to him and would according to use and wont acknowledge himself as
well as his messengers (-lictores-); a question, which undoubtedly
might no more be answered in the negative than the parallel homage
in the case of a hereditary monarchy might be refused.
It was in thorough consistency with constitutional principles that
the burgesses, just as being the sovereign power, should not on
ordinary occasions take part in the course of public business. So
long as public action was confined to the carrying into execution
of the existing legal arrangements, the power which was, properly
speaking, sovereign in the state could not and might not interfere:
the laws governed, not the lawgiver. But it was different where a
change of the existing legal arrangements or even a mere deviation
from them in a particular case was necessary; and here accordingly, under
the Roman constitution, the burgesses emerge without exception as
actors; so that each act of the sovereign authority is accomplished
by the co-operation of the burgesses and the king or -interrex-.
As the legal relation between ruler and ruled was itself sanctioned
after the manner of a contract by oral question and answer, so
every sovereign act of the community was accomplished by means of
a question (-rogatio-), which the king addressed to the burgesses,
and to which the majority of the curies gave an affirmative answer.
In this case their consent might undoubtedly be refused. Among
the Romans, therefore, law was not primarily, as we conceive it,
a command addressed by the sovereign to the whole members of the
community, but primarily a contract concluded between the constitutive
powers of the state by address and counter-address.(14) Such
a legislative contract was -de jure- requisite in all cases which
involved a deviation from the ordinary consistency of the legal
system. In the ordinary course of law any one might without
restriction give away his property to whom he would, but only
upon condition of its immediate transfer: that the property should
continue for the time being with the owner, and at his death pass
over to another, was a legal impossibility--unless the community
should allow it; a permission which in this case the burgesses
could grant not only when assembled in their curies, but also when
drawn up for battle. This was the origin of testaments. In the
ordinary course of law the freeman could not lose or surrender the
inalienable blessing of freedom, and therefore one who was subject
to no housemaster could not subject himself to another in the place
of a son--unless the community should grant him leave to do so. This
was the -abrogatio-. In the ordinary course of law burgess-rights
could only be acquired by birth and could never be lost--unless
the community should confer the patriciate or allow its surrender;
neither of which acts, doubtless, could be validly done originally
without a decree of the curies. In the ordinary course of law
the criminal whose crime deserved death, when once the king or his
deputy had pronounced sentence according to judgment and justice,
was inexorably executed; for the king could only judge, not
pardon--unless the condemned burgess appealed to the mercy of the
community and the judge allowed him the opportunity of pleading
for pardon. This was the beginning of the -provocatio-, which for
that reason was especially permitted not to the transgressor who
had refused to plead guilty and had been convicted, but to him
who confessed his crime and urged reasons in palliation of it. In
the ordinary course of law the perpetual treaty concluded with a
neighbouring state might not be broken--unless the burgesses deemed
themselves released from it on account of injuries inflicted on
them. Hence it was necessary that they should be consulted when an
aggressive war was contemplated, but not on occasion of a defensive
war, where the other state had broken the treaty, nor on the
conclusion of peace; it appears, however, that the question was in
such a case addressed not to the usual assembly of the burgesses,
but to the army. Thus, in general, it was necessary to consult the
burgesses whenever the king meditated any innovation, any change
of the existing public law; and in so far the right of legislation
was from antiquity not a right of the king, but a right of the king
and the community. In these and all similar cases the king could
not act with legal effect without the cooperation of the community;
the man whom the king alone declared a patrician remained as before
a non-burgess, and the invalid act could only carry consequences
possibly -de facto-, not -de jure-. Thus far the assembly of the
community, however restricted and bound at its emergence, was yet
from antiquity a constituent element of the Roman commonwealth,
and was in law superior to, rather than co-ordinate with, the king.
The Senate
But by the side of the king and of the burgess-assembly there
appears in the earliest constitution of the community a third
original power, not destined for acting like the former or for
resolving like the latter, and yet co-ordinate with both and within
its own rightful sphere placed over both. This was the council
of elders or -senatus-. Beyond doubt it had its origin in the
clan-constitution: the old tradition that in the original Rome the
senate was composed of all the heads of households is correct in
state-law to this extent, that each of the clans of the later Rome
which had not merely migrated thither at a more recent date referred
its origin to one of those household-fathers of the primitive
city as its ancestor and patriarch. If, as is probable, there was
once in Rome or at any rate in Latium a time when, like the state
itself, each of its ultimate constituents, that is to say each
clan, had virtually a monarchical organization and was under the
rule of an elder--whether raised to that position by the choice
of the clansmen or of his predecessor, or in virtue of hereditary
succession--the senate of that time was nothing but the collective
body of these clan-elders, and accordingly an institution independent
of the king and of the burgess-assembly; in contradistinction to
the latter, which was directly composed of the whole body of the
burgesses, it was in some measure a representative assembly of
persons acting for the people. Certainly that stage of independence
when each clan was virtually a state was surmounted in the Latin
stock at an immemorially early period, and the first and perhaps
most difficult step towards developing the community out of
the clan-organization--the setting aside of the clan-elders--had
possibly been taken in Latium long before the foundation of Rome;
the Roman clan, as we know it, is without any visible head, and no
one of the living clansmen is especially called to represent the
common patriarch from whom all the clansmen descend or profess to
descend so that even inheritance and guardianship, when they fall
by death to the clan, devolve on the clan-members as a whole.
Nevertheless the original character of the council of elders
bequeathed many and important legal consequences to the Roman
senate. To express the matter briefly, the position of the senate
as something other and more than a mere state-council--than an
assemblage of a number of trusty men whose advice the king found
it fitting to obtain--hinged entirely on the fact that it was once
an assembly, like that described by Homer, of the princes and rulers
of the people sitting for deliberation in a circle round the king.
So long as the senate was formed by the aggregate of the heads
of clans, the number of the members cannot have been a fixed one,
since that of the clans was not so; but in the earliest, perhaps
even in pre-Roman, times the number of the members of the council
of elders for the community had been fixed without respect to
the number of the then existing clans at a hundred, so that the
amalgamation of the three primitive communities had in state-law
the necessary consequence of an increase of the seats in the senate
to what was thenceforth the fixed normal number of three hundred.
Moreover the senators were at all times called to sit for life; and
if at a later period the lifelong tenure subsisted more -de facto-
than -de jure-, and the revisions of the senatorial list that
took place from time to time afforded an opportunity to remove the
unworthy or the unacceptable senator, it can be shown that this
arrangement only arose in the course of time. The selection of
the senators certainly, after there were no longer heads of clans,
lay with the king; but in this selection during the earlier epoch,
so long as the people retained a vivid sense of the individuality
of the clans, it was probably the rule that, when a senator died,
the king should call another experienced and aged man of the same
clanship to fill his place. It was only, we may surmise, when the
community became more thoroughly amalgamated and inwardly united,
that this usage was departed from and the selection of the senators
was left entirely to the free judgment of the king, so that he was
only regarded as failing in his duty when he omitted to fill up
vacancies.
Prerogatives of the Senate. The -Interregnum-
The prerogatives of this council of elders were based on the view
that the rule over the community composed of clans rightfully
belonged to the collective clan-elders, although in accordance
with the monarchical principle of the Romans, which already found
so stern an expression in the household, that rule could only be
exercised for the time being by one of these elders, namely the
king. Every member of the senate accordingly was as such, not in
practice but in prerogative, likewise king of the community; and
therefore his insignia, though inferior to those of the king, were
of a similar character: he wore the red shoe like the king; only
that of the king was higher and more handsome than that of the
senator. On this ground, moreover, as was already mentioned, the
royal power in the Roman community could never be left vacant When
the king died, the elders at once took his place and exercised the
prerogatives of regal power. According to the immutable principle
however that only one can be master at a time, even now it was only
one of them that ruled, and such an "interim king" (-interrex-) was
distinguished from the king nominated for life simply in respect
to the duration, not in respect to the plenitude, of his authority.
The duration of the office of -interrex- was fixed for the individual
holders at not more than five days; it circulated accordingly among
the senators on the footing that, until the royal office was again
permanently filled up, the temporary holder at the expiry of that
term nominated a successor to himself, likewise for five days,
agreeably to the order of succession fixed by lot. There was not,
as may readily be conceived, any declaration of allegiance to the
-interrex- on the part of the community. Nevertheless the -interrex-
was entitled and bound not merely to perform all the official acts
otherwise pertaining to the king, but even to nominate a king for
life-- with the single exception, that this latter right was not
vested in the first who held the office, presumably because the
first was regarded as defectively appointed inasmuch as he was not
nominated by his predecessor. Thus this assembly of elders was
the ultimate holder of the ruling power (-imperium-) and the divine
protection (-auspicia-) of the Roman commonwealth, and furnished
the guarantee for the uninterrupted continuance of that commonwealth
and of its monarchical--though not hereditarily monarchical--organization.
If therefore this senate subsequently seemed to the Greeks to be
an assembly of kings, this was only what was to be expected; it
had in fact been such originally.