That this new government of the senate amidst all its retention of existing forms involved a complete revolutionizing of the old commonwealth, is clear. That the free action of the burgesses should be arrested and benumbed; that the magistrates should be reduced to be the presidents of its sittings and its executive commissioners; that a corporation for the mere tendering of advice should seize the inheritance of both the authorities sanctioned by the constitution and should become, although under very modest forms, the central government of the state--these were steps of revolution and usurpation. Nevertheless, if any revolution or any usurpation appears justified before the bar of history by exclusive ability to govern, even its rigorous judgment must acknowledge that this corporation timeously comprehended and worthily fulfilled its great task. Called to power not by the empty accident of birth, but substantially by the free choice of the nation; confirmed every fifth year by the stern moral judgment of the worthiest men; holding office for life, and so not dependent on the expiration of its commission or on the varying opinion of the people; having its ranks close and united ever after the equalization of the orders; embracing in it all the political intelligence and practical statesmanship that the people possessed; absolute in dealing with all financial questions and in the guidance of foreign policy; having complete power over the executive by virtue of its brief duration and of the tribunician intercession which was at the service of the senate after the termination of the quarrels between the orders--the Roman senate was the noblest organ of the nation, and in consistency and political sagacity, in unanimity and patriotism, in grasp of power and unwavering courage, the foremost political corporation of all times--still even now an "assembly of kings," which knew well how to combine despotic energy with republican self-devotion. Never was a state represented in its external relations more firmly and worthily than Rome in its best times by its senate. In matters of internal administration it certainly cannot be concealed that the moneyed and landed aristocracy, which was especially represented in the senate, acted with partiality in affairs that bore upon its peculiar interests, and that the sagacity and energy of the body were often in such cases employed far from beneficially to the state. Nevertheless the great principle established amidst severe conflicts, that all Roman burgesses were equal in the eye of the law as respected rights and duties, and the opening up of a political career (or in other words, of admission to the senate) to every one, which was the result of that principle, concurred with the brilliance of military and political successes in preserving the harmony of the state and of the nation, and relieved the distinction of classes from that bitterness and malignity which marked the struggle of the patricians and plebeians. And, as the fortunate turn taken by external politics had the effect of giving the rich for more than a century ample space for themselves and rendered it unnecessary that they should oppress the middle class, the Roman people was enabled by means of its senate to carry out for a longer term than is usually granted to a people the grandest of all human undertakings--a wise and happy self-government.

Notes For Book II Chapter III

1. The hypothesis that legally the full -imperium- belonged to the patrician, and only the military -imperium- to the plebeian, consular tribunes, not only provokes various questions to which there is no answer--as to the course followed, for example, in the event of the election falling, as was by law quite possible, wholly on plebeians --but specially conflicts with the fundamental principle of Roman constitutional law, that the -imperium-, that is to say, the right of commanding the burgess in name of the community, was functionally indivisible and capable of no other limitation at all than a territorial one. There was a province of urban law and a province of military law, in the latter of which the -provocatio- and other regulations of urban law were not applicable; there were magistrates, such as the proconsuls, who were empowered to discharge functions simply in the latter; but there were, in the strict sense of law, no magistrates with merely jurisdictional, as there were none with merely military, -imperium-. The proconsul was in his province, just like the consul, at once commander-in-chief and supreme judge, and was entitled to send to trial actions not only between non-burgesses and soldiers, but also between one burgess and another. Even when, on the institution of the praetorship, the idea rose of apportioning special functions to the -magistratus maiores-, this division of powers had more of a practical than of a strictly legal force; the -praetor urbanus- was primarily indeed the supreme judge, but he could also convoke the centuries, at least for certain cases, and could command an army; the consul in the city held primarily the supreme administration and the supreme command, but he too acted as a judge in cases of emancipation and adoption--the functional indivisibility of the supreme magistracy was therefore, even in these instances, very strictly adhered to on both sides. Thus the military as well as jurisdictional authority, or, laying aside these abstractions foreign to the Roman law of this period, the absolute magisterial power, must have virtually pertained to the plebeian consular tribunes as well as to the patrician. But it may well be, as Becker supposes (Handb. ii. 2, 137), that, for the same reasons, for which at a subsequent period there was placed alongside of the consulship common to both orders the praetorship actually reserved for a considerable time for the patricians, even during the consular tribunate the plebeian members of the college were -de facto- kept aloof from jurisdiction, and so far the consular tribunate prepared the way for the subsequent actual division of jurisdiction between consuls and praetors.

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