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stracto, but with the mode in which they have been handled INTRO, and applied.

of Roman

The Romans were distinguished from all other nations, General not only by the extreme earnestness and precision with character which they conceived their law and worked out the conse-law. quences of its fundamental principles, but by the good sense which made them submit to the law, once established, as an absolute necessity of political health and strength. It was this severity in thinking and acting which more than any other causes made Rome great and powerful. Even in the most remote times all rights and duties of individuals were specified with a scrupulous minuteness which may well provoke astonishment, if not admiration. This is apparent first of all in the religioni.e. the divine law-of the Romans. With them religion was not a matter of feeling or speculation, but of law.' The divine law, the elder sister of the civil law, was the pattern upon which the latter was moulded. Both were characterised by the same severity, systematic order, deference to fixed formulas, and fear of change.


But if the advancing development of intellect and Roman atfeeling, of understanding and culture, was opening a way to old for revolt against the narrow and harsh rules of the divine forms. law; if ways and means had been found to escape by interpretation and legal fiction from the necessity of enforcing laws which had been discovered to be unjust; if, for instance, instead of human victims, once sacrificed to the gods, the heads of onions or poppies were substituted, then surely in civil law there was far less reason to hesitate in obeying the demands of advancing culture, although, with truly Roman dislike to innovations, old forms were often allowed to remain, even when they had either become utterly useless, or had at any rate lost their original meaning.

The effect of the conservative spirit, so characteristic of the Roman character, exhibited a twofold contrast be

See below, chap. xiii.

tion of the Roman

BOOK VI. tween real power and the legal title to it. In the manageOrganiza- ment of internal affairs the people had the formal right of sovereignty, but the senate possessed the true power. republic. With regard to foreign countries, the chief strength of Rome lay in the resources of her subjects; but the formal right of wielding these resources belonged to the Roman citizens. From this unnatural state of things arose the necessity of a revolution, which in all cases is nothing but a restoration of equilibrium between the legal forms of a constitution and the reality of the actual conditions of national life. With the help of the demagogues, the people again attained possession of the supreme power in the state, the subjects shook off the yoke of the minority, first by the social war, and then by the establishment of the monarchy. These revolutions of a later date were foreshadowed in the first period of Roman history, in which step by step the plebs, which formed the body and strength of the nation, obtained equal constitutional rights with the patricians. When all the patrician privileges had been set aside, the republican institutions had reached their full development. Then began the time of foreign conquests, during which the constitutional forms remained as they had been, and seemed to be no longer capable of gradual and periodical modification. It is the object of the following chapters to give a complete view of the organization of the Roman republic such as it appeared in this period of comparative stagnation between the passing of the Hortensian laws, 287 B.C., and the agitation of Tiberius Gracchus, 133 B.C.





The curies

and their


THE division of the Roman people into thirty curiæ, and CHAP. the assembly called the Comitia Curiata, which dates from the very first period of national existence, survived the downfall of the monarchy and were preserved in the republican age, but they were rather a venerable relic of the past than an essential part of the new order of things. The assembly of the curiæ had ceased to be the expression of the popular will in military and political matters ever since the overthrow of the monarchy, and was retained chiefly for divers formalities in sacred and civil law, which the superstition or the conservative spirit of Rome would not allow to be transferred to any other political body. It was according to curia that the people met for the celebration of the festivals of the Fornacalia and Fordicidia,' and in curiatic assemblies arrogations took place and testaments were made. It is probable also that on certain occasions the curiæ still continued to administer popular jurisdiction as in the regal period; but we have no means of proving that in republican times they exercised either the right of electing civil magistrates, or that of enacting

1 Ovid, Fast. ii. 525. Varro, Ling. Lat. vi. 15.

2 The right of jurisdiction was an essential attribute of every sort of popular assembly, and was originally of greater importance than the right of legislation, which was rarely exercised. In the earlier period, when political institutions were subordinate to religion, and the sacred law (fas) was yet predominant over the civil law (ius) all penal jurisdiction was naturally in the hands of the comitia curiata, which had a distinct religious character. Even in republican times it seems that whenever the punishment of an offender was the sacratio of his person or property, only the comitia curiata, and no other body, could pronounce it.



The comi

tia of centuries.

laws,' or that of confirming the decisions of other popular assemblies.2

Immediately after the establishment of the republic the assemblies of centuries (comitia centuriata) are found to be in full working order, and, indeed, in a manner so complete and comprehensive that we cannot look upon them as something newly established at that time. From the very first moment that the light of history falls upon them they appear to have full possession of all the rights which they ever possessed at a later period. They are not in any way further developed as time proceeds; on the contrary, they almost immediately begin to be limited in their sphere of action, the assembly of tribes (comitia tributa) being placed by their side. It is this latter assembly which increases rapidly in power, encroaches more and more upon the older order of things, and by degrees usurps many of the rights of the centuries with respect to legislation, elections, and administration, thus acquiring that which the elder institution loses. This change soon proceeded so far that without injury to the state the centuries might have dwindled down to a mere formality, just as the curiæ had done at the commencement of the republic, leaving the assembly of tribes as the only exponent of the sovereignty of the people.

1 Some degree of analogy exists between the comitia curiata as preserved in republican times and the English Convocation, which, though practically abolished and deprived of its old powers in the constitution, continues to meet regularly at the beginning of every session of Parliament. Also the formal act of conferring the imperium by the patrum auctoritas may be matched in the English Constitution by an old custom which contains the shadow of an ancient but long-abolished privilege. This is the nominal right of Deans and Chapters to elect bishops, conferred upon them by the royal conge d'élire. The English Deans and Chapters would no more think of refusing to elect the person indicated by the Crown than the Roman senate could refuse the patrum auctoritas.

2 The ceremony of conferring upon the newly-elected magistrates the imperium, or supreme military and judicial authority, by a lex curiata was continued throughout the republican time, but the curies were on these occasions represented by thirty lictors, which shows that it was an empty formality. Another formality, which had formerly been an important constitutional right, the conferring of the so-called patrum auctoritas, belonged, not to the assembly of curies, but to the senate. Vol. i. p. 134.


Conflict between


The division of this sovereignty among two assemblies differently organized, though composed of elements essentially the same, is peculiar to the Roman constitution, and cannot fail to strike us as very strange. The fact these two that no conflict ever broke out between the two assemblies is explained not so much by a careful limitation of their respective rights as by the circumstance that the difference between them was more formal, than real, that the centuries in the detail of their organization became more and more democratic, whilst, on the contrary, the development of the tribes took place in the opposite direction, and tended to make them more aristocratic than they had been at first.

the comi

It follows from what we have said that the original History of form of the comitia centuriata, as they are described by ta of cenLivy, Dionysius, and Cicero―i.e. the division of the people turies. in five classes, with their respective census, and one hundred and ninety-three centuries-was not created by a single legislator, in the manner in which modern charters are made; but that it was the final result of an historical development which precedes the commencement of trustworthy Roman history-i.e. the time of the consular government. It is impossible to ascertain the original sources from which the numbers of classes, with their centuries and the census-sums fixed for the five classes, are taken. Thus much we may safely assert, that these numbers and divers other particulars given by the historians are not drawn from the pretended 'commentaries of king Servius Tullius,' as was readily believed by an uncritical age.3 This is evident from the fact that the sums of the census, ranging from 100,000 asses down to a minimum of 12,500 or 11,000 asses, cannot possibly have 1 See vol. i. p. 64. 2 See vol. i. p. 67. The commentarii Servi Tulli which Livy (i. 60, 4) quotes as a kind of charter or organic law, containing the groundwork of the republican constitution, belong to those fictitious documents of the regal period, of which the leges regia and the commentarii Nume are parts. They all owe their origin to a comparatively late period, are certainly not older than the decemviral legislation, and received additions and alterations from time to time until they found their way into the annals.

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