The History of Rome, Book II. Theodor Mommsen

in war more particularly the equality of rights in the consuls could not but appear fraught with danger; and not only positive testimonies, but above all the oldest names given to the magistrate himself and his assistant, as well as the limitation of the office to the duration of a summer campaign, and the exclusion of the -provocatio- attest the pre-eminently military design of the original dictatorship.

      On the whole, therefore, the consuls continued to be, as the kings had been, the supreme administrators, judges, and generals; and even in a religious point of view it was not the -rex sacrorum- (who was only nominated that the name might be preserved), but the consul, who offered prayers and sacrifices for the community, and in its name ascertained the will of the gods with the aid of those skilled in sacred lore. Against cases of emergency, moreover, a power was retained of reviving at any moment, without previous consultation of the community, the full and unlimited regal authority, so as to set aside the limitations imposed by the collegiate arrangement and by the special curtailments of jurisdiction. In this way the problem of legally retaining and practically restricting the regal authority was solved in genuine Roman fashion with equal acuteness and simplicity by the nameless statesmen who worked out this revolution.

      Centuries and Curies

      The community thus acquired by the change of constitution rights of the greatest importance: the right of annually designating its presidents, and that of deciding in the last instance regarding the life or death of the burgess. But the body which acquired these rights could not possibly be the community as it had been hitherto constituted—the patriciate which had practically become an order of nobility. The strength of the nation lay in the "multitude" (-plebs-) which already comprehended in large numbers people of note and of wealth. The exclusion of this multitude from the public assembly, although it bore part of the public burdens, might be tolerated as long as that public assembly itself had no very material share in the working of the state machine, and as long as the royal power by the very fact of its high and free position remained almost equally formidable to the burgesses and to the —metoeci— and thereby maintained equality of legal redress in the nation. But when the community itself was called regularly to elect and to decide, and the president was practically reduced from its master to its commissioner for a set term, this relation could no longer be maintained as it stood; least of all when the state had to be remodelled on the morrow of a revolution, which could only have been carried out by the co-operation of the patricians and the —metoeci—. An extension of that community was inevitable; and it was accomplished in the most comprehensive manner, inasmuch as the collective plebeiate, that is, all the non-burgesses who were neither slaves nor citizens of extraneous communities living at Rome under the -ius hospitii-, were admitted into the burgess-body. The curiate assembly of the old burgesses, which hitherto had been legally and practically the first authority in the state, was almost totally deprived of its constitutional prerogatives. It was to retain its previous powers only in acts purely formal or in those which affected clan-relations —such as the vow of allegiance to be taken to the consul or to the dictator when they entered on office just as previously to the king,9 and the legal dispensations requisite for an -arrogatio- or a testament—but it was not in future to perform any act of a properly political character. Soon even the plebeians were admitted to the right of voting also in the curies, and by that step the old burgess-body lost the right of meeting and of resolving at all. The curial organization was virtually rooted out, in so far as it was based on the clan-organization and this latter was to be found in its purity exclusively among the old burgesses. When the plebeians were admitted into the curies, they were certainly also allowed to constitute themselves -de jure- as—what in the earlier period they could only have been -de facto-10—families and clans; but it is distinctly recorded by tradition and in itself also very conceivable, that only a portion of the plebeians proceeded so far as to constitute -gentes-, and thus the new curiate assembly, in opposition to its original character, included numerous members who belonged to no clan.

      All the political prerogatives of the public assembly—as well the decision on appeals in criminal causes, which indeed were essentially political processes, as the nomination of magistrates and the adoption or rejection of laws—were transferred to, or were now acquired by, the assembled levy of those bound to military service; so that the centuries now received the rights, as they had previously borne the burdens, of citizens. In this way the small initial movements made by the Servian constitution—such as, in particular, the handing over to the army the right of assenting to the declaration of an aggressive war11—attained such a development that the curies were completely and for ever cast into the shade by the assembly of the centuries, and people became accustomed to regard the latter as the sovereign people. In this assembly debate took place merely when the presiding magistrate chose himself to speak or bade others do so; of course in cases of appeal both parties had to be heard. A simple majority of the centuries was decisive.

      As in the curiate assembly those who were entitled to vote at all were on a footing of entire equality, and therefore after the admission of all the plebeians into the curies the result would have been a complete democracy, it may be easily conceived that the decision of political questions continued to be withheld from the curies; the centuriate assembly placed the preponderating influence, not in the hands of the nobles certainly, but in those of the possessors of property, and the important privilege of priority in voting, which often practically decided the election, placed it in the hands of the -equites- or, in other words, of the rich.

      Senate

      The senate was not affected by the reform of the constitution in the same way as the community. The previously existing college of elders not only continued exclusively patrician, but retained also its essential prerogatives—the right of appointing the interrex, and of confirming or rejecting the resolutions adopted by the community as constitutional or unconstitutional. In fact these prerogatives were enhanced by the reform of the constitution, because the appointment of the magistrates also, which fell to be made by election of the community, was thenceforth subject to the confirmation or rejection of the patrician senate. In cases of appeal alone its confirmation, so far as we know, was never deemed requisite, because in these the matter at stake was the pardon of the guilty and, when this was granted by the sovereign assembly of the people, any cancelling of such an act was wholly out of the question.

      But, although by the abolition of the monarchy the constitutional rights of the patrician senate were increased rather than diminished, there yet took place—and that, according to tradition, immediately on the abolition of the monarchy—so far as regards other affairs which fell to be discussed in the senate and admitted of a freer treatment, an enlargement of that body, which brought into it plebeians also, and which in its consequences led to a complete remodelling of the whole. From the earliest times the senate had acted also, although not solely or especially, as a state-council; and, while probably even in the time of the kings it was not regarded as unconstitutional for non- senators in this case to take part in the assembly,12 it was now arranged that for such discussions there should be associated with the patrician senate (-patres-) a number of non-patricians "added to the roll" (-conscripti-). This did not at all put them on a footing of equality; the plebeians in the senate did not become senators, but remained members of the equestrian order, were not designated -patres- but were even now -conscripti-, and had no right to the badge of senatorial dignity, the red shoe.13 Moreover, they not only remained absolutely excluded from the exercise of the magisterial prerogatives belonging to the senate (-auctoritas-), but were obliged, even where the question had reference merely to an advice (-consilium-), to rest content with the privilege of being present in silence while the question was put to the patricians in turn, and of only indicating their opinion by adding to the numbers when the division was taken—voting with the feet (-pedibus in sententiam ire-, -pedarii-) as the proud nobility expressed it. Nevertheless, the plebeians found their way through the new constitution not merely to the Forum, but also to the senate-house, and the first and most difficult step towards equality of rights was taken in this quarter also.

      Otherwise there was no material change in the arrangements affecting the senate. Among the patrician members a distinction

9

I. V. The King

10

I. VI. Dependents and Guests

11

I. VI. Political Effects of the Servian Military Organization

12

I. V. The Senate as State Council

13

I. V. Prerogatives of the Senate