III. trates on the whole, therefore, were not able to shine as CHAP. independent and brilliant statesmen, masters of the situation, and guided by their own personal convictions. We must not be surprised at their general mediocrity. They lacked the conditions necessary to free and spontaneous action. They could exercise on the whole merely a furthering or a hindering influence upon matters of detail; they were not able to direct the great course of events. No individual statesman ever was able at any period of the Roman republic up to the days of the Revolution to exercise more than a temporary influence--not even a Scipio Africanus or a Cato. succession The principal cause of this by no means extraordinary Constant phenomenon is to be found in the fundamental law of the of officers. republican organization, which limited the duration of magisterial offices to a fixed period, and put restrictions upon the right of re-election. The annual change of the supreme magistrates made it impossible for an individual to occupy for a length of time a dominant position. Even the greatest genius is kept down if no time or opportunity is given him for displaying his powers. History knows no heroes in any department of human action who are perfect at once, and who can carry out great thoughts and deeds in a short space of time. Another obstacle to the production of great statesmen was the division of the executive power among numerous colleagues. At the time when the republic was in its highest perfection the service of the state required annually two consuls, several prætors, two curule ædiles, two plebeian ædiles, four quæstors, ten tribunes of the people, every five years two censors-i.e. about twenty officers annually who were to be qualified to conduct important branches of the administration. And as if this were not enough, it was insisted upon in Rome that one of the consuls should be chosen from aniong the patricians,' Up to the year 172 B.C. one of the two consuls was always a patrician, though the Licinian law, 366 B.C., provided only for the election of at least one plebeian annually, without forbidding the election of two. Division of the executive power. BOOK VI. Restric tions and checks on Roman magis trates. even after this restriction had ceased to have any meaning and when the diminished number of patricians made the choice more and more difficult. How could the citizens of a single town be in a condition to respond to such frequent and numerous calls otherwise than by contenting themselves with a certain moderate average talent? In that case they could find men who had sufficient capacity and experience for the current business and for formal duties; but great minds, men of wide grasp and intellectual power, would necessarily have felt cramped and thwarted in the narrow confines of an annual office. So high then was the price which the Romans paid for the security of their republican constitution. It was only by systematically restraining all aspiring minds, and by imposing upon the executive magistrates the condition of mediocrity, that their liberty remained unendangered. And this principle which opposed the growth of individual talents was adhered to with increasing strictness. Whilst in the earlier times up to the fourth century B.C. reelections to the consulship occur frequently, we find the rule established in the year 342 B.C. that no one should be chosen consul a second time, until an interval of ten years had elapsed. In extreme cases, indeed, this rule was often broken. But it was enforced again in ordinary times, and in the course of the second century B.C. other restrictions were added, such as the Lex Villia, 180 B.C., which determined the order of succession in which the republican offices were to be held, and the age requisite for a For instance, in 298 B C., Liv. x. 13, 8. During the second Punic war a plebiscite was carried, in 217 B C., to suspend the restriction of the law of 342 B.C. so long as the war should last in Italy. Liv. xxvii. 6, 7. After this period the law of 342 B.C. revived. About 150 B.c. a more sweeping law was passed forbidding re-elections altogether. Liv. epit. 56. Festus, s. v. Pavimenta, p. 242, Müll. Such restrictive laws could easily be set aside in times of necessity, according to the principles enounced by Cicero De Imperio Pomp. 20, 60: Maiores nostros in pace consuetudini, in bello utilitati paruisse. A plebiscite could ordain that any person specially named should be exempt from legal restrictions (ut legibus solveretur'). This was done in favour of the younger Scipio Africanus, 134 B.C., of Marius, 104-100 B.C., and again 86 B.C. candidate to each of these offices. In these restrictions unknown to the more ancient period we see the disadvantages under which every republic labours in comparison with the more liberal form of government of a constitutional monarchy. The latter realises that which is essential in a republic, the supremacy of law and the responsibility of magistrates, and yet it is not limited in the choice of magistrates with regard to fixed times of election or duration of office; it is not compelled to forego the services of an experienced man because perchance he has already served the state for a certain length of time or a certain number of times: and, on the other hand, it is not bound to retain any magistrate in office for a prescribed unalterable period, even though the choice should have been unhappy and injurious to the community.2 The constitutional law of Rome possessed one means of avoiding frequent changes of commanders in war. This was the prorogation of the imperium, which was first made use of in the second Samnite war, 326 B.C.3 But this apparently simple, natural and appropriate means of carrying on military operations according to one consecutive plan was very rarely employed in the earlier period.' Of the older period Cicero says (Phil. v. 17, 47): Maiores nostri veteres illi admodum antiqui leges annales non habebant, quas multis post annis attulit ambitio. Of the year 180 B.C. Livy reports, xl. 44: Eo anno rogatio primum lata est a L. Villio tribuno plebis, quot annos nati quemque magistratum peterent caperentque. The age was fixed by the regulation that nobody should be a candidate for the quæstorship, the lowest office in the scale, before he had completed ten years of military service. This would make the age of twenty-seven years the earliest for any of the offices of state. Regular intervals required between the other offices would fix the respective date for each. See Mommsen, Röm. Staatsrecht, i. p. 463 ff. A similar restriction was contained in the Licinian and Ebutian laws, by which the movers of extraordinary commissions were excluded from serving on those commissions. Comp. Lange, Ròm. Alterth. ii, p. 297. 2 The danger of a predetermined period of office, fixed by law and unalterable except by a revolution, was shown not long ago in the presidency of Mr. Johnson, the successor of Abraham Lincoln. The United States escaped with difficulty an internal convulsion, as the Constitution provided no means for bringing about an agreement between the chief executive officer and the majority of the people. 3 Vol. i. p. 384. 4 The next instance is the prorogation of the command of Q. Fabius CHAP. III. The Im perium. BOOK Magisterial preroga tives. During the Punic wars the state was compelled more frequently to have recourse to it. But even then the public mind seems to have been disquieted by a dim foreboding that in lengthened military commands might be found the origin of monarchical government. Of all the republican states of antiquity Carthage alone was able to entrust commands of longer duration to her generals without experiencing or, as far as we know, fearing danger to her liberty. The public law of Rome, like that of every other republic, was obliged to put up with two evils. It had to guarantee its magistrates against formal deposition from their offices, and against impeachment during their time of office. The rule which prohibited deposition during the fixed period of office was no arbitrary rule which might have been dispensed with, but it flowed naturally from the first principle of the republican constitution, which is the limitation of the terms of public offices. If the title of a magistrate to hold his office for a fixed period is not respected, if he can be dismissed at any time before the expiration of his time of office on the ground of malversation, the whole legal order of a republic is overthrown. In case a magistrate should not only prove incapable, or commit errors injurious to the state, but should show himself openly an enemy to the existing order of things, open resistance to him would, of course, be justified and necessary. But in that case the formal law would be disregarded on both sides. No constitution can proceed on the presumption that legal measures will ever have to be taken to prevent an attack upon itself by the person entrusted with supreme power for the protection and execution of the law. If this presumption is falsified by a coup d'état, then the revolution from above can be opposed only by a revolution from below, not by any pro Rullianus, 307 B.C. Liv. ix. 42. Only two more cases are recorded by Livy (x. 16, x. 22) before the Punic wars. In the war with Hannibal prorogations occur more frequently. Liv. xxiii. 25, xxiv. 11, xxv. 6, xxiv. 10. III. visions of the law, because the execution of the law itself CHAP. is placed in the hands of the very men who in this case would have to be restrained by the law.' 2 trates. Strictly speaking, it is only the supreme magistrates Responsibility of of a republic that can claim irremoveability from office, republican not those of subordinate rank, because the latter can easily magisbe made responsible to their superiors. But in Rome only the quæstors and the masters of the horse 3 held such a position with regard to the consuls or dictators that the latter could issue orders to them, and control their official actions. The remaining magistrates were in no manner subordinate to others, except when they were all superseded by a dictator. They were invested with their rights by the people, and being responsible to the people alone, they could be made to answer for their official actions only after the expiration of their time of office. There were, however, ways and means of inducing, if Removal not of compelling, the higher as well as the lower magis- trates. of magistrates to lay down their office. Firstly, the religious ceremonies with which the election, the entry upon office, and other formal proceedings were attended, offered an opportunity for declaring that an official had not been duly appointed. It was not advisable to oppose a declara The public law at Rome went so far in recognising the impossibility of deposing a public magistrate by a constitutional process that in the case of the refusal of a magistrate to resign his authority after the expiration of his period of office the only redress seemed to be the curse of the gods or actual violence. It was on this foundation that Valerius Poplicola, in one of the Valerian laws, established the republican government (vol. i. p. 128), nor could any of the following statesmen discover legal remedies to be put in the place of a law, which by its appeal to the gods and to brute force admitted the absence of a legal barrier. A tribune of the people might, by virtue of his sacrosancta potestas,' oppose a magistrate who would attempt to continue his authority beyond the legal period; he might even, in case of necessity, seize him and hurl him from the Tarpeian rock. But, after all, such a proceeding would have been an illegal stretch of the tribunician power, and in effect would have been revolutionary. % Polyb. vi. 12, 8. Thus the dictator L. Papirius Cursor forbade his refractory subordinate, the master of the horse, Q. Fabius Rullianus, quicquam pro magistratu agere. Liv. viii. 36. It is a great exception when a consul gives directions to a prætor as to a subordinate officer, as related by Livy, xxvii. 5, 17. |