obtained the force of law. The act of conferring this ratification by the patrum auctoritas was no superfluous formality. It is true the preliminary deliberation in the senate was the common rule, and when the senate had once decided to bring a resolution before the people for acceptance, it was almost certain that their consent and approbation would follow; but it was not impossible that, owing to unlooked-for events, or party manœuvres, the senate, after repeated deliberations, might arrive at a different vote, just as in the English parliament the first and second readings of a bill do not always insure its passing on the third. But the right of the senate to give or withhold its consent to a resolution of the people was of especial importance, because the magistrates could not be prevented from bringing a question before the people even without submitting it previously to the senate.' The withholding of the patrum auctoritas, therefore, was one of the means which the patricians made use of to control the decisions of the comitia. It was first legally abolished by the Publilian law, 339 B.C., with regard to acts of legislation, and by the Mænian law with reference to the election of magistrates. In consequence of these two laws the patrum auctoritas became a mere formality, because the senate was now compelled to confirm the eventual decision of the people before the votes were actually taken.2 See Mommsen, Forschungen, p. 201 ff. 2 An instance of the refusal by the senate of the Patrum auctoritas occurred most probably in the year 486 B.C. when the agrarian law of Spurius Cassius was passed. The consul Cassius, who was the author of this popular law, found himself opposed by the senate (see book ii. chap. vii.) The majority of the patricians in the senate resisted the attempt of the consul to carry the law, and punished the author of it with death. It is not likely, therefore, that the senate empowered or commissioned the consul to lay the law before the comitia of the people for their approval. Nevertheless, the people adopted the law (see Schwegler, Röm. Gesch., ii. 477). But the law remained a dead letter. The agrarian disputes which now followed and lasted many years, all turn on the demands of the plebeians to have the law carried out, and on the obstinate refusal of the patricians to accede to this demand. It is quite evident that the patricians must have had some legal pretext for resisting the demands of the plebeians, and their pretext was most probably supplied by the circumstance СНАР. I. BOOK II. Roman finance. Election of senators. One branch of the public service, which in modern times occupies a prominent part and regulates all political action, was of subordinate importance in old republican Rome. This was the management of the finances. state in which no public officer received any salary, where the military service was a personal duty exacted from the citizens, there was no necessity for an elaborate system of finance, and even taxes properly so-called could not be wanted before the introduction of regular pay to the soldiers, i.e. before the year 406 B.C. There were, therefore, no officers especially entrusted with the management of the finances. The senate administered the property of the state. Booty gained in war, fines imposed by law, and any other money that flowed into the treasury of the state, passed through the hands of the consuls. Annually elected officers, the quæstors of the treasury, were not appointed before the year 449 B.C. for the management of the public finances.1 As to the composition of the senate, it is certain that the election of senators was entrusted to the consuls. After the violence of the revolution which had driven into exile a great number of the adherents of the dethroned monarch, the senate was naturally very much reduced in numbers, and it became necessary to fill up the numerous vacancies by an extraordinary measure. This measure, 2 which by some historians is ascribed to Brutus, by others to Valerius Poplicola, is supposed to have brought a number of plebeians into the senate, who after the current view of the old historians were at once raised to the rank of patricians, but who, according to the opinion of modern critics, remained plebeian, and thus formed a plebeian that the decision of the people had not received the Patrum auctoritas. If this sanction had been given, Spurius Cassius could at once have proceeded to carry the law into execution. But, as it was, he succumbed, after the expiration of his year of office, to the vengeance of the nobility, by being judged (more maiorum) by the curiæ. Such proceedings as this no doubt supplied the motives for the lex Publilia and the lex Mania, by which the Patrum auctoritas was de facto abolished. See the Author's Researches, p. 75. See especially Mommsen, Forschungen, p. 251. section in the patrician senate. The official title of the senators, by which they were addressed as Patres Conscripti,' was by the popular archæologists derived from this new element in the senate, the surname Conscripti' being supposed to apply originally only to the newly received plebeian members. If there existed authentic historical evidence of the period which immediately followed the beginning of the republic, we should be compelled simply to accept the account of the reception of plebeians into the senate, although it sounds very improbable. But all the reputed evidence consists in attempts of later Roman antiquarians to account for the title Patres Conscripti.' These have no value in themselves, and as they do not agree with the gradual development of the plebeian rights, there is no choice left us but to reject them. CHAP. The con script fathers. the senate. The legal position of the plebeians in the beginning of Admission of plethe republic was such that we cannot conceive their adbeians into mission to the council of patricians to have been possible. The senate was the representative of the patrician interest during all the disputes of the two classes of citizens. Nowhere can there be discovered a trace of a plebeian party in the senate. A whole century elapses after the beginning of the republic before we find a single plebeian in the senate; and even long after the admission of plebeians to the highest offices of the state, the patrician element in the senate was by far the strongest. Moreover, the elevation of plebeians to the rank of patricians for the purpose of strengthening the senate is highly improbable. It is irreconcilable with the great contrast which evidently separated the two classes at the beginning of the republic—a contrast which amounted to a legal barrier between them, and prevented the possibility of individuals from one class joining the other,' but which, after such a precedent as the alleged reception of many plebeians into the body of the patricians and into the senate, could not have been maintained any longer. 1 See Mommsen, Forschungen, p. 173. BOOK II. We have, therefore, no alternative left but to hold that, in the beginning of the republic, the senate was purely Patrician patrician, and remained for a long time the real reprecharacter sentative of the patrician interest. As such it appears of the senate. The comitia of centuries. throughout in the narratives of the annalists, and it is therefore easily explained that the same political terms are applied to the senate which designate the patrician order as such, particularly the expressions Patres and Patricians. Afterwards, when, by the admission of plebeians to the highest offices of state, they were admitted by degrees into the senate, and when, by the equality of rights of the two orders, the old aristocracy of the patricians was merged in the new 'nobility,' the senate was always the representative of these nobles, and the old views and names were on the whole preserved by the historians of the time.1 Simultaneously with the Valerian laws, which established the republic, the Comitia centuriata, which Servius Tullius is said to have devised with a view of abolishing the kingly power, came into practical use. The highest political functions in the state, the decisions of the sovereign people, were now formally transferred to this assembly, which, as we have surmised above,2 owed its origin to military necessities at a time when the old organisation of the army, based on the curiæ, no longer sufficed. It seems to have gradually grown out of the original assembly of the thirty curia. As a natural consequence of this innovation, the comitia of curia were now more and more confined to mere formalities, just as the royal dignity was not altogether abolished, but was allowed to survive in the office of sacrificial king, though reduced to an empty shadow of its original power. The comitia of the centuries had, therefore, from the very beginning of the republic, the same functions which had formerly See the Author's article 'On the Patres Conscripti,' in the Festschrift des historisch-philosophischen Vereins zu Heidelberg. Leipzig, Engelmann, 1865. * See pp. 67, 138, and the Author's treatise in Symbola Philologorum Bonnensium, p. 629. belonged to the comitia of curiæ. In them was vested the right of legislation, the election of the chief magistrates, the decision of questions of peace and war, and, lastly, they formed the highest court of judicature, which had to pass sentence, in the last instance, in all cases affecting the life of a citizen. In the comitia of centuries, therefore, reposed the sovereignty of the people.2 They were the source of power, because they appointed the magistrates, and indirectly, through the magistrates, the senators. The laws were the expression of the will of the people as declared in the centuries. The consuls and the senate had only certain limited rights and duties conferred on them in the administration and legislation, but the people was supreme and sovereign; it was limited and controlled by no legal power beside itself that might claim superiority or even equality to it. The de facto influence of the aristocracy, exercised by the magistrates and the senate, had no independent legal foundation, but was always dependent on the will of the people. the CHAP. I. centuries. The comitia of centuries embraced the whole of the Roman people, not a part only, like the comitia of curiæ, in which citizens in the plebeian clients were only passive members, without comitia of the right of voting. Every Roman citizen was now competent to vote, according to the measure of his census. But this apparent political equality was far from filling up the gulf between the two classes of citizens. If the patricians and plebeians in the assembly of centuries had really been amalgamated into one people, and if at the same time the plebeians had been admitted to the senate and to the magistracy, the development of the constitution would have taken quite a different direction from what it It is, however, doubtful if the last of these rights belonged to them before the decemvirate. It has been assumed almost as an incontrovertible fact by modern historians that the decisions of the centuries were subject to a vote of approval or rejection by the comitia of the curiæ. There is no proof whatever for such a constitutional theory, which seems derived from the modern system of parliamentary legislation. In Rome no popular assembly ever stood in a relation to another popular assembly similar to the position of one House of Parliament to another. |