of which they were made. Camillus and, at a later time, Marius appeared to the people as reorganizers of the army; the censors Appius Claudius, Q. Fabius, and all the later ones who regulated the registration of citizens in the various tribes apparently effected their constitutional reforms merely by virtue of their official authority. Their measures as well as the edicts of the prætors had the force of law until they were altered or suspended by another magistrate at a later time. Thus the officials were the instruments by which continually and gradually public law was developed without the help of formal acts of legislature.' CHAP. III. This action of the officials will be discussed in the Coercive chapters dealing with the different departments of the powers of the magis administration. It will suffice for the present to say that trates. the commanding position of the magistrates was in great measure due to their influence as important organs of legislation. These secondary means, however, were hardly necessary to clothe the Roman magistracy with dignity and to raise it far above the people, in spite of the short term of office to which it was restricted. The 'imperium,' the supreme military and judicial authority of the consuls and prætors, though limited by law within the precincts of the town, conferred a degree of power to which every citizen was obliged to yield. No common citizen could dream of bidding defiance or of eluding the orders of such magistrates; nay, the mere potestas' without the 'imperium,' with which the other magistrates were invested, conferred the right of imposing fines and punishing instantly every attempt at resistance. The lictors of the consuls, the attendants of the other magistrates were always ready to enforce not only obedience to their orders, but due attention to those marks of respect which were 1 The edicts of the Roman magistrates were of wider scope and had far more the character of laws than the administrative rules determined by the chiefs of the different departments of state in modern times. They trenched upon the legislative powers of the popular assembly, whose law-making had nothing of the feverish assiduity of modern parliaments. Comp. Lange, Röm. Alterth. ii. p. 555. BOOK The auspices. due from every citizen to the men invested with public authority.' The power of the magistrates received additional strength from the fact that they were, as it was technically called, in the possession of the public auspices-i.e. that they had the right of communing with the gods for the purpose of obtaining the divine approval for all public acts. In this important function they were not dependent upon the goodwill of the priests, but made use of the priests as their servants without allowing them any independent action. It will be more clearly shown in the section treating of the religious institutions how this independence of the civil power served to effect a complete unity between state and religion, and to prevent every possibility of a dispute. Thus the Roman magistracy, although not free from defects, was strongly organized to bear up the power of the state, and well qualified to uphold the laws within and to guarantee security from without. 1 Compare Lange, Röm. Alterth. i. p. 588. 2 The struggle between Church and State, which has been, and still is, so baneful in modern Europe, was unknown in Greece and Rome. CHAPTER IV. THE MILITARY ADMINISTRATION. IV. Import ance of the consular office. THE Consulship was always regarded as the highest office 1 CHAP. in the Roman republic, and its chief duty was the command of the army in time of war. The protection of the citizens from external enemies was thus recognised as the first condition for the existence of the state. The consuls were looked upon as the true successors of the kings, and in the beginning of the republic wielded for limited periods the whole civil and military power which the kings had enjoyed for life. By degrees their sphere of action was narrowed, various branches being separated from it to be entrusted to special magistrates. After the establishment of the prætorship, in the year 366 B.C., the consuls were but rarely and exceptionally commissioned to act as judges, and only by especial decrees of the senate. They never performed the official duties of the censors, ædiles, or quæstors. The simple form of the original constitution became more complicated by the multiplication of offices, whilst at the same time the Roman dominion expanded over subject territories. So it happened that what the consulship lost in variety of functions it gained amply in the greater importance of those that were left to it as the first magistracy of the ruling state of Italy. Apart from the transfer of some parts of the administration to other magistrates, little was changed in the con Hence the Greek designation, naтo, or chief magistrates, for the consuls, and the custom of using their names for the official notation of the year. 2 Liv. xxxix. 14, 6: Patres quæstionem de Bacchanalibus sacrisque nocturnis extra ordinem consulibus mandant. See Mommsen, Röm. Staatsrecht, ii. P. 101. BOOK VI. Military duties of the con suls. Inhumanity of Roman generals. stitutional functions of the consulship itself. It may safely be asserted that in no state in the world has any office undergone so few alterations during such a length of time. Next to the general administration military affairs engaged chiefly the attention of the consuls. The continual wars scarcely allowed any interruption in their military duties, and as the theatre of war became further removed from Rome, and military operations assumed larger proportions, the position of the chief commanders necessarily became more independent than it had been during the short summer campaigns of the older time in Latium or Samnium. The consuls were more and more at liberty to determine the course of the war themselves, and it became more and more difficult for the home government-i.e. for the senate-to exercise any real superintendence or control over them. This became very perceptible as early as the wars with Carthage. Thus the two elder Scipios were in fact unrestricted in their military operations in Spain, and the conqueror of New Carthage could dare to oppose his will to that of the senate. This independence of the consuls increased during the wars in the East and during the later wars in Spain and Liguria. A Manlius undertook without permission a predatory campaign against the Galatians; 2 a Cassius attempted to penetrate into a province that was not assigned to him; 3 a Popilius Lænas, a Claudius, waged war against nations with whom they were commanded to keep at peace. It is highly characteristic that in no single instance were the arbitrary proceedings of refractory generals punished, not even when a formal accusation was brought against them. Besides this increasing self-will of the generals, they began to exhibit after the Hannibalic war a brutal disregard for the demands of humanity, nay, of the rights of nations and the honour of the Roman name. It is true, Polyb. vi. 12, 1: oi mаTOL . . . πασῶν εἰσὶ κύριοι τῶν δημοσίων πράξεων. Ιb. 5 : περὶ πολέμου κατασκευῆς καὶ καθόλου τῆς ἐν ὑπαίθροις οἰκονομίας σχεδὸν αὐτοκράτορα τὴν ἐξουσίαν ἔχουσι. Vol. iii. p. 163. 3 Vol. iii. p. 224. Vol. ii. pp. 202, 423. the Romans could at no time boast of extraordinary clemency in their mode of carrying on war, although from time to time a touch of chivalric spirit may be traced in their actions; but ever since they began to regard themselves as the nation called upon to rule they accustomed themselves more and more to a shameful and revolting disregard of every restraint which a common feeling of humanity, honour, and duty has from time immemorial put upon the animal passions. It appeared to them just and proper that everything should be permitted in war. They therefore practised not only stratagem and deception, which have always been excused in war, but even perjury, falsehood, and cunning, accompanied with cruelty and a butcherlike brutality that makes us shudder. The Spanish wars in particular are full of shameful deeds which ought to have caused the national pride to blush. Public opinion in the old world, although less scrupulous than in modern times, could not justify such proceedings even in time of war; and in Rome, especially in the senate, the feeling of humanity often was roused to condemn such reckless abuse of power. The perpetrators of some of the worst misdeeds were exposed to violent attacks and accusations, but they invariably managed to escape unscathed; in fact, the home government proved incapable of so far controlling the military command of the generals as to compel them to an honourable and humane mode of warfare. CHAP. IV. of Roman In proportion as the disposition of the generals became Military more savage, their military incapacity increased. Year incapacity after year the brave Roman soldiers were led almost at consuls. random, to be surrounded by rude but warlike barbarians in forests or mountain passes, to be taken prisoners or to be butchered wholesale. The history of the Spanish, the Ligurian, and the Gallic wars, though coloured by party spirit in favour of individual families and of the Roman people, nevertheless exhibits so many disgraceful defeats that the final victory of the Romans can be ex plained only by the enormous disproportion between the |