The History of Rome - All 5 Volumes in One Edition. Theodor Mommsen
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the community seemed to have exceeded its competence—to have violated by its decree existing obligations towards the gods or towards foreign states or organic institutions of the community. But still it was a matter of the greatest importance that—to take an example—when the Roman king had proposed a declaration of war and the burgesses had converted it into a decree, and when the satisfaction which the foreign community seemed bound to furnish had been demanded in vain, the Roman envoy invoked the gods as witnesses of the wrong and concluded with the words, "But on these matters we shall consult the elders at home how we may obtain our rights;" it was only when the council of elders had declared its consent, that the war now decreed by the burgesses and approved by the senate was formally declared. Certainly it was neither the design nor the effect of this rule to occasion a constant interference of the senate with the resolutions of the burgesses, and by such guardianship to divest them of their sovereign power; but, as in the event of a vacancy in the supreme office the senate secured the continuance of the constitution, we find it here also as the shield of legal order in opposition even to the supreme power—the community.
The Senate As State-Council
With this arrangement was probably connected the apparently very ancient usage, in virtue of which the king previously submitted to the senate the proposals that were to be brought before the burgesses, and caused all its members one after another to give their opinion on the subject. As the senate had the right of cancelling the resolution adopted, it was natural for the king to assure himself beforehand that no opposition was to be apprehended from that quarter; as indeed in general, on the one hand, it was in accordance with Roman habits not to decide matters of importance without having taken counsel with other men, and on the other hand the senate was called, in virtue of its very composition, to act as a state-council to the ruler of the community. It was from this usage of giving counsel, far more than from the prerogatives which we have previously described, that the subsequent extensive powers of the senate were developed; but it was in its origin insignificant and really amounted only to the prerogative of the senators to answer, when they were asked a question. It may have been usual to ask the previous opinion of the senate in affairs of importance which were neither judicial nor military, as, for instance—apart from the proposals to be submitted to the assembly of the people—in the imposition of task-works and taxes, in the summoning of the burgesses to war-service, and in the disposal of the conquered territory; but such a previous consultation, though usual, was not legally necessary. The king convoked the senate when he pleased, and laid before it his questions; no senator might declare his opinion unasked, still less might the senate meet without being summoned, except in the single case of its meeting on occasion of a vacancy to settle the order of succession in the office of -interrex-. That the king was moreover at liberty to call in and consult other men whom he trusted alongside of, and at the same time with, the senators, is in a high degree probable. The advice, accordingly, was not a command; the king might omit to comply with it, while the senate had no other means for giving practical effect to its views except the already-mentioned right of cassation, which was far from being universally applicable. "I have chosen you, not that ye may be my guides, but that ye may do my bidding:" these words, which a later author puts into the mouth of king Romulus, certainly express with substantial correctness the position of the senate in this respect.
The Original Constitution of Rome
Let us now sum up the results. Sovereignty, as conceived by the Romans, was inherent in the community of burgesses; but the burgess-body was never entitled to act alone, and was only entitled to co-operate in action, when there was to be a departure from existing rules. By its side stood the assembly of the elders of the community appointed for life, virtually a college of magistrates with regal power, called in the event of a vacancy in the royal office to administer it by means of their own members until it should be once more definitively filled, and entitled to overturn the illegal decrees of the community. The royal power itself was, as Sallust says, at once absolute and limited by the laws (-imperium legitimum-); absolute, in so far as the king's command, whether righteous or not, must in the first instance be unconditionally obeyed; limited, in so far as a command contravening established usage and not sanctioned by the true sovereign—the people—carried no permanent legal consequences. The oldest constitution of Rome was thus in some measure constitutional monarchy inverted. In that form of government the king is regarded as the possessor and vehicle of the plenary power of the state, and accordingly acts of grace, for example, proceed solely from him, while the administration of the state belongs to the representatives of the people and to the executive responsible to them. In the Roman constitution the community of the people exercised very much the same functions as belong to the king in England: the right of pardon, which in England is a prerogative of the crown, was in Rome a prerogative of the community; while all government was vested in the president of the state.
If, in conclusion, we inquire as to the relation of the state itself to its individual members, we find the Roman polity equally remote from the laxity of a mere defensive combination and from the modern idea of an absolute omnipotence of the state. The community doubtless exercised power over the person of the burgess in the imposition of public burdens, and in the punishment of offences and crimes; but any special law inflicting, or threatening to inflict, punishment on an individual on account of acts not universally recognized as penal always appeared to the Romans, even when there was no flaw in point of form, an arbitrary and unjust proceeding. Far more restricted still was the power of the community in respect of the rights of property and the rights of family which were coincident, rather than merely connected, with these; in Rome the household was not absolutely annihilated and the community aggrandized at its expense, as was the case in the police organization of Lycurgus. It was one of the most undeniable as well as one of the most remarkable principles of the primitive constitution of Rome, that the state might imprison or hang the burgess, but might not take away from him his son or his field or even lay permanent taxation on him. In these and similar things the community itself was restricted from encroaching on the burgess, nor was this restriction merely ideal; it found its expression and its practical application in the constitutional veto of the senate, which was certainly entitled and bound to annul any resolution of the community contravening such an original right. No community was so all-powerful within its own sphere as the Roman; but in no community did the burgess who conducted himself un-blameably live in an equally absolute security from the risk of encroachment on the part either of his fellow-burgesses or of the state itself.
These were the principles on which the community of Rome governed itself—a free people, understanding the duty of obedience, clearly disowning all mystical priestly delusion, absolutely equal in the eye of the law and one with another, bearing the sharply-defined impress of a nationality of their own, while at the same time (as will be afterwards shown) they wisely as well as magnanimously opened their gates wide for intercourse with other lands. This constitution was neither manufactured nor borrowed; it grew up amidst and along with the Roman people. It was based, of course, upon the earlier constitutions—the Italian, the Graeco-Italian, and the Indo-Germanic; but a long succession of phases of political development must have intervened between such constitutions as the poems of Homer and the Germania of Tacitus delineate and the oldest organization of the Roman community. In the acclamation of the Hellenic and in the shield-striking of the Germanic assemblies there was involved an expression of the sovereign power of the community; but a wide interval separated forms such as these from the organized jurisdiction and the regulated declaration of opinion of the Latin assembly of curies. It is possible, moreover, that as the Roman kings certainly borrowed the purple mantle and the ivory sceptre from the Greeks (not from the Etruscans), the twelve lictors also and various other external arrangements were introduced from abroad. But that the development of the Roman constitutional law belonged decidedly to Rome or, at any rate, to Latium, and that the borrowed elements in it are but small and unimportant, is clearly demonstrated by the fact that all its ideas are uniformly expressed by words of Latin coinage. This constitution practically established for all time the fundamental conceptions of the Roman state; for, as long as there existed a Roman community, in spite of changes of form it was always held that the magistrate had absolute command, that the council of elders was the highest authority in the state, and that every exceptional resolution required the sanction of the sovereign or, in other words, of the community