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.

The Period Anterior to the Abolition of the Monarchy Page 32

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