Roman politics

by Frank Frost Abbott

3. On Constitutions

While it cannot be said that the constitutional development of England and of countries whose constitutions are like hers can be traced in all respects to Rome, it may be said with truth that the growth and character of their constitutions bear a strong resemblance to those of Rome, and that writers and political leaders, especially from the time of the French Revolution to our own day, have studied Roman political institutions and have applied the lessons drawn from their study to the political and constitutional questions of the day. In Rome under the Republic the people when they expressed their wish in the assembly were omnipotent, just as the decision of the English people voiced in Parliament is final. As it is in England, so in Rome the latest pronouncement of the popular will rendered null and void any previous enactment or statute in conflict with it. Rome had no formal written constitution any more than England has, but as in England such legal documents as Magna Charta, the Habeas Corpus Act, and the Parliament Act of 1911 are recognised as being more fundamental than the ordinary statute, so in Rome under the Republic the Laws of the Twelve Tables, the enactment that a citizen charged with a capital offence had the right of appealing to the people, and the principle that a lex, or action of the popular assembly, took precedence of a decree of the senate, were so embedded in tradition that no measure could be passed in violation of the principles underlying them. Under the Empire, however, we find a document which, so far as it goes, resembles somewhat a written constitution, viz., the “Law of Vespasian conferring the imperium.”[13] In this document we have a comprehensive and systematic recital of the fundamental rights, powers, and privileges of the Emperor. As we have just seen, Rome and England have not defined the functions of the several organs of the state and their relation to one another in a single document, with which all statutes, judicial decisions, and administrative acts must conform, to be valid, as the United States, France, Switzerland and most other modern nations have done. However, the laws, precedents, and customs which direct the public life of England and directed that of Rome in a sense make up their constitutions. Constitutions of this sort, as Bryce maintains in his Studies in History and Jurisprudence, are flexible. They bend but do not break under the temporary blasts of popular passion or emotion. They have grown up with the people and are part of the fibre of the people. Going back, as they do, into the past, they have the mystery and the dignity which antiquity gives them. The character of the Roman and of the English constitutions reflect the character of the two peoples and their likeness to each other. They bring out the practical qualities of the two nations, their respect for the past, and their ability to adapt their institutions to new conditions. One more point of similarity between Roman and Anglo-Saxon fundamental laws lies in the fact that both are concrete, and concern themselves little with political doctrines. Both peoples drove straight at specific abuses, without citing any principles of abstract right in justification of the proposed reform.

In one respect Roman government differed fundamentally from that of most modern states. The three functions of government which Montesquieu clearly recognized, the executive, legislative, and judicial, were not assigned to three different classes of officials with as much care as they are today. Of course this lack of differentiation is more noticeable in the early period than it is in the later, but it persists even into the Empire. The Senate, for instance, under the Empire not only legislated, but it nominally had the right to elect the Emperor and the magistrates, and also sat as a court to hear political charges made against members of the senatorial order. Although the threefold division of governmental powers was observed then only in part in the actual organization of the Roman state, it was recognized by Aristotle and by Cicero in their works on politics. The Greco-Roman doctrine on this subject was reaffirmed by Bodin and Locke, as Garner has pointed out in his Introduction to Political Science, before it was set forth as a fundamental principle of political organization in the Spirit of the Laws. The teachings of Montesquieu on this point became a part of the political philosophy of the French Revolution. In England Blackstone maintained, as Montesquieu had done, that there could be no public liberty when the right of making and enforcing the law was vested in the same man or the same body of men, or when the judicial power was not separated from the legislative and executive. The makers of the Constitution of the United States were profoundly influenced by Montesquieu and Blackstone, and probably no modern constitution exemplifies so well as does the American constitution the threefold division of powers recognized by Cicero. As the Supreme Court has said in one of its decisions: “It is believed to be one of the chief merits of the American system of written constitutional law that all powers entrusted to the government, whether state or national, are divided into three grand departments, the executive, the legislative and the judicial; that the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined.”

If we should try to set down the valuable contributions which the Romans have made to modern political theory, or the achievements of the Romans which we may study with profit, or the political qualities in them which we may imitate to advantage, or the important political principles or institutions which we have inherited from them, we should think of the doctrines of popular sovereignty, of the equality and brotherhood of man, of the practical proof which they have given us of the value of a flexible constitution, of their teachings concerning the theory of the state, and of their introduction of the historical method of studying political institutions. Of all these contributions to modern civilization we have already spoken. We should also think of their devotion to the state, of their regard for law and tradition, of their wise opportunism which made their political thinking practical and concrete, of their development of a marvellous body of civil law, of their careful observance of the principle of local self-government, with its acceptance of local institutions and practices, and of their success in promoting law and order and a feeling of social solidarity, in improving material conditions throughout the world, and in governing and civilizing backward peoples. This is a long list, but in all these respects the political acumen of the Romans was noteworthy, and their achievements either lie at the basis of modern civilization, as we shall see, or may furnish us guidance in our political development. In our discussion of the different branches of the government, and of various fields of political activity, we shall have occasion to take up in detail many of these points which have not yet been mentioned.