II. of the power of that body,' just as he lays great weight CHAP. upon the economical dependence of the mass of the people upon the senate." These influences were not contemplated by the constitution of the republic. They were, strictly speaking, illegal, and an abuse of the power entrusted to the governing body. But the fact is by no means surprising. It has always been found a most difficult task to prevent the tampering with the administration of justice for private and political ends. Even in modern times the fair administration of justice between man and man independent of all side influences has not been universally established. No wonder that the republican states of antiquity were very far indeed from realising it. They could hardly contemplate the possibility of excluding private and political considerations from legal decisions, and they were content with endeavouring to balance one undue influence by another. Thus we can understand that even the noble and wise Polybius without hesitation points to the influence of the senators in the administration of justice as an essential bulwark of their political power, without suspecting that he thereby to a certain extent excuses a shameful abuse. Thus, then, by being regularly employed as judges in Senatorial private suits, the senators enjoyed an indirect but power- law-courts. ful influence. This influence was essentially increased by the circumstance that the senate as supreme administrative council had the right of appointing extraordinary criminal tribunals on extraordinary emergencies. The appointment of these tribunals was, strictly speaking, a limitation of popular jurisdiction, or a transfer of it from the comitia to a select number of judges or jurymen. In strict law, therefore, a formal decree of the people was necessary in order to constitute such a special court of justice.3 1 Polyb. vi. 17, 5: τὸ δὲ μέγιστον, ἐκ ταύτης [τῆς συγκλήτου] ἀποδίδονται κριταὶ τῶν πλείστων καὶ τῶν δημοσίων καὶ τῶν ἰδιωτικῶν συναλλαγμάτων, ὅσα μέγεθος ἔχει τῶν ἐγκλημάτων. Διὸ πάντες εἰς τὴν ταύτης πίστιν ἐνδεδεμένοι, καὶ δεδιότης τὸ τῆς χρείας ἄδηλον εὐλαβῶς ἔχουσι πρὸς τὰς ἐνστάσεις καὶ τὰς ἀντιπράξεις τῶν τῆς συγκλήτου βουλευμάτων. 2 See above, p. 51. See Lange, Röm. Alterth. ii. 4 13. 58 BOOK The senate and the knights. The senate ligion. But it appears that in most cases the co-operation of the This control of public jurisdiction by the senate was The chief control of the administration of justice was closely connected with the care for public worship and the religion of the state. The latter was in the full sense 1 Popular jurisdiction-i.e. the trial of offences by the mass of the peopledoes not admit of a strictly legal and impartial procedure. The people as a body are always swayed by feelings, prejudice and party spirit, and often guided in their judgment by side issues, irrelevant as to the guilt or innocence of the accused. II. of the word a part of the public law. In the conviction CHAP. of the Roman people the prosperity of the state depended no less upon the purity and careful observance of religion than upon the due administration of justice; nay, the protection of the national gods was thought to be as much required for the security of the state as the force of the Roman arms. and the state. This political importance of public worship is explained Religion by the intimate union of state and religion, and more particularly by the practical subordination of the latter to the former. An independent or even hostile position of religion with regard to the state was beyond the limits of possibility. As the religion of Rome was not the religion of all mankind, but that of the one state, thus also the servants of religion were the servants of this state, and the superintendence of religion belonged by right to the senate, the supreme national council. The priests, as the servants of the gods, were but the interpreters of divine law. The public magistrate appealed to them for their opinion on religious matters. But the final decision of every religious question lay, undoubtedly, in the hands of the political power. Hence the numerous senatorial decrees concerning religious matters: for instance, the introduction of foreign forms of worship' and festivals,' the prohibition of foreign oracles,3 the expulsion of foreign prophets like the Chaldæan priests," the destruction of the alleged religious books of Numa, but above all the famous senatus consultum on the Bacchanalian festivals." It almost appears strange, but it is quite in accordance with the political views of the Romans, that these matters should be referred to a political authority, and not to the priestly assemblies of augurs or pontifices, of whom the latter especially had the duty of watching over the due performance of religious ceremonies. It is here plainly 4 Liv. iv. 39, xxxix. 16. 3 Valer. Max. i. 3, 1. 5 Valer. Max. i. 3, 12. 6 2 Liv. xxv. 12. 4 Liv. xxv. 1. Liv. xl. 29. Comp. Lange, Röm. Alterth. ii. 230. 7 Liv. xxxix. 8-19. See below, chap. xiii. BOOK Legislative influ senate. shown that the religious bodies were not capable of acting independently, and were called together only to support the political magistrates with their advice. The uninterrupted concord and perfect agreement between the religion and the state was, moreover, facilitated by the circumstance that there never existed a distinct class or caste of priests, and that the highest priestly offices were held by the same men who as magistrates or senators conducted the public business of the state. We have seen that the senate in all departments of ence of the public life possessed the leading, controlling and determining authority, carrying on the government properly speaking; whilst the magistrates had to attend to the administration—i.e. the ordinary executive business, in which they were bound to carry out the established laws and the instructions given to them by the senate. This supreme control the senate had obtained, as we have seen, without having been entitled at first to do more than to give advice in those cases in which the magistrates thought proper to ask for it. It was not natural that the senate should exercise such a preponderating influence over the government without having a corresponding share in the legislation. The senate, which was the soul of the executive power, could not possibly look on indifferently whilst the Roman people, as legislators, laid down the lines destined to regulate the action of the officers of the republic and of private citizens. We cannot, therefore, be surprised that in this department of legislation the same phenomenon is repeated which we have witnessed in the administration of the state-namely, that the senate exercised a marked influence upon the legislation without being directly entrusted with legislative functions by the constitution. Initiative powers of the senate. If a legislator of the modern school had drawn up the Roman constitution, he would, undoubtedly, have inserted a paragraph to this effect, that no law should be submitted to the people for their approval unless it had previously been discussed and recommended by the senate; or, at any rate, that no popular decree should have the force of law without the sanction of the senate. The Romans could dispense with such a fundamental law, because it was in the nature of things that the senate as the sole consulting and debating body, as the supreme council of state and controlling board of the government, should have in its hand the preliminary discussion and planning of laws, and thus, in point of fact, the control of the entire legislation. Thus by habit a constitutional practice was formed which for centuries was kept just as sacred as if it had been sworn to as a fundamental law. It was not until the year 232 B.C. that a statesman, in the interest of progress and for the benefit of the people, frustrated the opposition of the senate by overruling it and maintaining the right of the people to pass valid laws even without the preliminary deliberation and approval of the senate. It was the notorious and severely-censured measure of Caius Flaminius, for the distribution of land in the district of Picenum, that gave rise to this innovation, an innovation from which Polybius dates the turn of Roman politics for the worse. As we shall see, the policy of Flaminius remained for a long time a solitary instance of democratic innovations, and the path which he had opened was not again trodden until the time of the Gracchi, when the senate by its obstinate resistance to reforms afforded to the popular leaders a pretext for violent changes in the constitution. The senate had less influence by formal decrees upon. 1 The so-called patrum auctoritas, which in the first period of the republic down to the Publilian law, 339 B.C. (see vol. i. p. 370), was required for every vote of the centuriate comitia to give it the force of law, was, in fact, such a constitutional prerogative of the senate, though, properly speaking, it did not belong to the senate as such, but to the members of the senate as patricians. When the senate had become a mixed body, consisting of patricians and plebeians, it was natural that the patrum auctoritas should be given to popular votes upon resolutions of the whole senate. Thus the senate did practically enjoy the constitutional right of controlling the votes of the comitia until the Publilian law. See the author's paper on the comitia tributa in Rhein. Museum, 1873, p. 357. Mommsen, Forschungen, i. p. 233 ff. 2 See above, p. 27. CHAP. II. |