The History of Rome, Book II. Theodor Mommsen
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the king.15 It was an established principle, that the general and the army as such should not under ordinary circumstances enter the city proper. That organic and permanently operative enactments could only be made under the authority of the civil power, was implied in the spirit, if not in the letter, of the constitution. Instances indeed occasionally occurred where the general, disregarding this principle, convoked his forces in the camp as a burgess assembly, nor was a decree passed under such circumstances legally void; but custom disapproved of such a proceeding, and it soon fell into disuse as though it had been forbidden. The distinction between Quirites and soldiers became more and more deeply rooted in the minds of the burgesses.
Government of the Patriciate
Time however was required for the development of these consequences of the new republicanism; vividly as posterity felt its effects, the revolution probably appeared to the contemporary world at first in a different light. The non-burgesses indeed gained by it burgess-rights, and the new burgess-body acquired in the -comitia centuriata- comprehensive prerogatives; but the right of rejection on the part of the patrician senate, which in firm and serried ranks confronted the -comitia- as if it were an Upper House, legally hampered their freedom of movement precisely in the most important matters, and although not in a position to thwart the serious will of the collective body, could yet practically delay and cripple it. If the nobility in giving up their claim to be the sole embodiment of the community did not seem to have lost much, they had in other respects decidedly gained. The king, it is true, was a patrician as well as the consul, and the right of nominating the members of the senate belonged to the latter as to the former; but while his exceptional position raised the former no less above the patricians than above the plebeians, and while cases might easily occur in which he would be obliged to lean upon the support of the multitude even against the nobility, the consul—ruling for a brief term, but before and after that term simply one of the nobility, and obeying to-morrow the noble fellow-burgess whom he had commanded to-day—by no means occupied a position aloof from his order, and the spirit of the noble in him must have been far more powerful than that of the magistrate. Indeed, if at any time by way of exception a patrician disinclined to the rule of the nobility was called to the government, his official authority was paralyzed partly by the priestly colleges, which were pervaded by an intense aristocratic spirit, partly by his colleague, and was easily suspended by the dictatorship; and, what was of still more moment, he wanted the first element of political power, time. The president of a commonwealth, whatever plenary authority may be conceded to him, will never gain possession of political power, if he does not continue for some considerable time at the head of affairs; for a necessary condition of every dominion is duration. Consequently the senate appointed for life inevitably acquired—and that by virtue chiefly of its title to advise the magistrate in all points, so that we speak not of the narrower patrician, but of the enlarged patricio-plebeian, senate—so great an influence as contrasted with the annual rulers, that their legal relations became precisely inverted; the senate substantially assumed to itself the powers of government, and the former ruler sank into a president acting as its chairman and executing its decrees. In the case of every proposal to be submitted to the community for acceptance or rejection the practice of previously consulting the whole senate and obtaining its approval, while not constitutionally necessary, was consecrated by use and wont; and it was not lightly or willingly departed from. The same course was followed in the case of important state-treaties, of the management and distribution of the public lands, and generally of every act the effects of which extended beyond the official year; and nothing was left to the consul but the transaction of current business, the initial steps in civil processes, and the command in war. Especially important in its consequences was the change in virtue of which neither the consul, nor even the otherwise absolute dictator, was permitted to touch the public treasure except with the consent and by the will of the senate. The senate made it obligatory on the consuls to commit the administration of the public chest, which the king had managed or might at any rate have managed himself, to two standing subordinate magistrates, who were nominated no doubt by the consuls and had to obey them, but were, as may easily be conceived, much more dependent than the consuls themselves on the senate.16 It thus drew into its own hands the management of finance; and this right of sanctioning the expenditure of money on the part of the Roman senate may be placed on a parallel in its effects with the right of sanctioning taxation in the constitutional monarchies of the present day.
The consequences followed as a matter of course. The first and most essential condition of all aristocratic government is, that the plenary power of the state be vested not in an individual but in a corporation. Now a preponderantly aristocratic corporation, the senate, had appropriated to itself the government, and at the same time the executive power not only remained in the hands of the nobility, but was also entirely subject to the governing corporation. It is true that a considerable number of men not belonging to the nobility sat in the senate; but as they were incapable of holding magistracies or even of taking part in the debates, and thus were excluded from all practical share in the government, they necessarily played a subordinate part in the senate, and were moreover kept in pecuniary dependence on the corporation through the economically important privilege of using the public pasture. The gradually recognized right of the patrician consuls to revise and modify the senatorial list at least every fourth year, ineffective as presumably it was over against the nobility, might very well be employed in their interest, and an obnoxious plebeian might by means of it be kept out of the senate or even be removed from its ranks.
The Plebeian Opposition
It is therefore quite true that the immediate effect of the revolution was to establish the aristocratic government. It is not, however, the whole truth. While the majority of contemporaries probably thought that the revolution had brought upon the plebeians only a more rigid despotism, we who come afterwards discern in that very revolution the germs of young liberty. What the patricians gained was gained at the expense not of the community, but of the magistrate's power. It is true that the community gained only a few narrowly restricted rights, which were far less practical and palpable than the acquisitions of the nobility, and which not one in a thousand probably had the wisdom to value; but they formed a pledge and earnest of the future. Hitherto the —metoeci— had been politically nothing, the old burgesses had been everything; now that the former were embraced in the community, the old burgesses were overcome; for, however much might still be wanting to full civil equality, it is the first breach, not the occupation of the last post, that decides the fall of the fortress. With justice therefore the Roman community dated its political existence from the beginning of the consulate.
While however the republican revolution may, notwithstanding the aristocratic rule which in the first instance it established, be justly called a victory of the former —metoeci— or the -plebs-, the revolution even in this respect bore by no means the character which we are accustomed in the present day to designate as democratic. Pure personal merit without the support of birth and wealth could perhaps gain influence and consideration more easily under the regal government than under that of the patriciate. Then admission to the patriciate was not in law foreclosed; now the highest object of plebeian ambition was to be admitted into the dumb appendage of the senate. The nature of the case implied that the governing aristocratic order, so far as it admitted plebeians at all, would grant the right of occupying seats in the senate not absolutely to the best men, but chiefly to the heads of the wealthy and notable plebeian families; and the families thus admitted jealously guarded the possession of the senatorial stalls. While a complete legal equality therefore had subsisted within the old burgess-body, the new burgess-body or former —metoeci— came to be in this way divided from the first into a number of privileged families and a multitude kept in a position of inferiority. But the power of the community now according to the centuriate organization came into the hands of that class which since the Servian reform of the army and of taxation had borne mainly the burdens of the state, namely the freeholders, and indeed not so much into the hands of the great proprietors or into those of the small cottagers, as into those of the intermediate class of farmers—an arrangement in which the seniors were still so far privileged that, although less numerous, they had as many voting- divisions as the juniors. While in this way the axe was laid to the root of the old burgess-body and their clan-nobility, and the basis of a new burgess-body was
It may not be superfluous to remark, that the -iudicium legitimum-, as well as that -quod imperio continetur-, rested on the imperium of the directing magistrate, and the distinction only consisted in the circumstance that the -imperium- was in the former case limited by the -lex-, while in the latter it was free.
II. I. Restrictions on the Delegation of Powers