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political trials after the Roman people had come to be counted by hundreds of thousands.



trates and

The position of magistrates was very little changed. The magisThe right of election and re-election had been regulated the people. and restricted by special laws. Detailed instructions had been given for the performance of official duties, and the vigilant supervision and control of the senate had restrained the magistrates to a certain extent in that tendency to arbitrary and self-willed action to which all Romans in authority were from the first unduly inclined. It was only in the field and in the control of the army that Polybius could possibly discover traces of monarchical power lodged in the hands of the superior magistrates.

ment of

All the actual power in the state which the magis- Real trates and, to a greater extent, the people had lost was governtransferred to the senate. It was this body, practically the senate. representing the nobility, which had in its hands the real government of the republic, by directing the action of all the magistrates and by preparing and determining the resolutions of the popular assemblies without ever meeting any opposition based on political principles. In truth the Roman republic had become a government by the senate. The senate was looked upon by citizens, subjects, and foreign princes and peoples as the bearer and wielder of the Roman power. With rare exceptions, all the executive magistrates submitted to its authority, and the docile people sanctioned, when they were bid, the senatorial propositions, and conferred upon them by formal suffrages the force of law.


It is not difficult to see that the old constitution, The senate devised for the city of Rome and a few neighbouring vil- and the lages, was not suited for the government of the whole of Italy, still less for an empire spreading over transmarine provinces, and including powerful kingdoms and dependencies. How could a meeting of tradesmen and peasants in the Roman market-place be qualified to direct a policy stretching so far beyond their horizon? It was an unavoidable necessity that this policy should become de


BOOK pendent upon a select body of professional statesmen, men who by birth, education, wealth, superior powers of mind, by devotion to public affairs, experience in business, traditional and hereditary wisdom, and by a higher degree of public spirit and patriotism, occupied a more eminent position in the community, and were more entitled to public confidence than the great mass of those who had to work and struggle for their daily subsistence, and had small leisure and less intelligence to devote to the management of public affairs. The senate was the place of union for the members of the noble families, the school of politics for the younger men, the practising ground for the older. Here lived the memories of bygone ages, the lessons of the great teachers of political wisdom, the hereditary, tried, and approved principles of action, the knowledge of the law. Here alone, therefore, it was possible to discuss political questions in their various bearings, and to examine them from different points of view, to listen to argument and receive information, and in matters of foreign policy to proceed with the necessary caution, dignity, and secrecy. The senate alone, as from an elevated point, could survey and control in every direction the various branches of the administration and government, and could combine to direct the action of the numerous magistrates, so as to carry out a uniform, systematic, and consistent policy. By what chance could it ever happen that a crowd of peasants and artisans meeting in the market-place almost fortuitously, and voting without previous information or deliberation, should come to a decision fit to thwart or control the well-considered plans of a body so eminently adapted for public business as the Roman senate? It would have been strange indeed if any other body of men had presumed to pursue a policy antagonistic to that of the senate. In every emergency, in prosperity and national reverses, in peace and war, the Roman senate had always proved equal to the occasion. It had exhibited the public virtues of Roman citizens in

1 Above, p. 45 ff.

their greatest perfection; and to it the greatness and power CHAP. of the republic were especially due.



the state.

Such eminent services had been gratefully acknow- Preledged and rewarded. As a body and individually the of the senators were the foremost of the Roman citizens. The senate in immense wealth collected at Rome from the spoils of conquered nations had enriched the great families of the nobility and raised them above the condition of ordinary citizens. A senatorial order had been formed, distinct from the rest of the people, and had received special privileges and marks of honour. The elder Scipio had assigned to the senators separate places to view the public games and spectacles. From time immemorial they had been entitled to wear a distinguishing dress. A senator travelling on public or even private business was treated by the allies and subjects of Rome with the reverence due to the majesty of the republic. Foreign communities felt themselves honoured by being permitted to consider themselves as the special clients of some great senatorial family. In short, the greatness and power of Rome were personified by that one assembly in a manner unequalled in any other nation of ancient or modern times.

of the

senate a


If judged by the forms and principles of the esta- The power blished law, this plenitude of power was nothing but a usurpation. No legal enactment had ever conferred ad- usurpaministrative or even legislative power on the senate. No resolution or decree of that body was formally binding on any magistrate, or on the people; nay, magistrates as well as people were at liberty, if they chose, to perform any act of administration or legislation without asking leave of the senate, or even contrary to its wish or advice. That the people and the magistrates hardly ever availed themselves of this power is a proof of the sound political sense of the Romans, who were very sagacious in adapting constitutional forms to the altered circumstances of the times. They were content to accept and to recognise the internal change which had taken place in the working of the constitution, and to legalise it practically by use and


Danger arising from obso

lete laws

left unre


custom. A customary law was formed, which for a time had as much force as if it had been voted by the legislative assembly of the people. Thus it became feasible to transform the old constitution silently and imperceptibly, and without any formal alteration of the law to change entirely its spirit and its working.

But though this development was spontaneous and natural, and though it was sanctioned and legalised by custom, it was fraught with danger, because the practical working of the constitution was not in accordance with the original form of law still existing, and the Romans found out by sad experience that it is a grave error to allow formulas and rules to remain unrepealed after they have lost their significance. A law disregarded and obsolete is not dead until it is abolished in due form, and it may become a dangerous weapon in the hands of a revolutionary party, which, under the pretext of restoring neglected laws to vitality, really tries to upset an order of things more in harmony with the existing wants of a nation.1

If after the conquest of Italy and foreign provinces

If we compare the origin of customary law in Rome with that of England, we shall find some analogies, but also great differences. In England an uncontested precedent has always been looked upon as determining and making law. The whole of the common law has no other origin but this, and yet it has always been looked upon as no less valid and binding than statute law created by the direct operation of the legislature. The latter has been applied to the completion, adaptation, modification, or repeal of the former, which forms the foundation of all law. In the contests between the Crown and the Parliament the people of England always based their claims upon original, incontestable, hereditary rights inherent in them as freeborn citizens, and thence deduced their demands of special rights and privileges. The royal charters and parliamentary statutes were essentially declaratory. They did not so much create new rights as determine what was right. On the other hand the Roman plebeians had to wrest from the patricians every privilege as the prize of victory. Whatever right was not formally sanctioned and sworn to had only a precarious authority. Hence the government of the senate, which had lasted for many generations, was only submitted to de facto: it never acquired the character of a constitutional right, and could therefore be looked upon and treated by the leaders of the popular party as a usurpation. Sulla was the first to discover this flaw. He tried to base the senatorial government upon formal constitutional law by an act of legislation. But at his time it was too late.



Change in

the charac


the Roman republic could be governed only by a rich and powerful aristocracy, this aristocracy on the other hand could only expect to hold its authority permanently if, in addition to its political capacity, it possessed sufficient ter of the self-control and moderation to resist the temptations to nobility. which all ruling classes are exposed-that is to say, so long as they did not unduly abuse their influence to secure their own personal interests to the prejudice of those of the state. Indeed, so long as the republic had to struggle for its existence, so long as it had powerful rivals, and so long as its preponderance was not entirely secured, the Roman nobility exhibited a high degree of political virtue, and thereby secured the firm possession of political power. But this political virtue became relaxed in the warm sunshine of prosperity. The ruling statesmen who decided the fate of foreign potentates and nations could no longer, and did no longer, live, like their predecessors in the good old times of poverty and simplicity, on the produce of their small farms cultivated by their own hands. They had become great landed proprietors and influential capitalists. Nor was this a change which in itself was deplorable or injurious. But increasing wealth had bred an immoderate greed for more. The public administration had become more and more an organization for plundering on the largest possible scale and in every possible direction. The magistrates of the republic robbed not only the enemies of the state with whom they carried on war, but also neutral and even friendly and allied communities, the subject provinces, nay, the state itself. No government, except that of the Turks, has ever equalled the system of unscrupulous plundering carried on by the ruling classes at Rome. Whilst the booty made in war and huge contributions paid by conquered enemies ought to have enriched the public treasury to overflowing, the finances of the republic remained in a wretched condition. They were not subject to any effective control. The senate, being irresponsible in the

1 1 Above, p. 164.

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