§ 2. The Theory of the Constitution
The Roman constitution had lost none of its complexity by growth. The accretions of ages had changed a curious but comparatively simple type of polity into a jumble of constitutional law and custom, through which even the keen eye of the Roman jurist could not pierce, and which even his capacity for fictitious interpretation and the invention of compromises could not reduce to a system. The lack of logic, which is the usual accompaniment of a conservatism not thorough-going enough to be consistent, produced a machine the results of which appeared for a time to be eminently satisfactory. It conquered the world, and succeeded for a time in governing it with some show of decency and a fair measure of success. Had the equilibrium been maintained in practice as in theory, mixed constitutions would have had the most assured claim to the respect and acceptance of the world. But as the knots which the jurist could not untie were cut by the sword, and the constitution reverted to a type far simpler even than that of its origin, we must assume a weakness in the mixed system, which might not have rendered it inadequate as the government of a city state or even of Italy, but certainly rendered it incapable of imperial rule. The test was a severe one, and the constitution which could not answer the strain need not be wholly condemned. For empire is a mere excrescence on the life of a state, a test neither of its goodness nor of its vitality. A pure treatment of the Roman constitution will neglect, as far as possible, this abnormal growth, and, although much of its structure was the result of war,[595] will be able to show that its essential peculiarities were not the effect of conquest.
The Roman state was still a limited sovereignty of the people; so limited, indeed, that the people, i.e. the patricio-plebeian populus Romanus, was dependent, not merely for the expression of its will, but even for its existence, on the life of its supreme magistrates. In the practice of the Republic down to its closing days, the cessation of the consulate, by the non-election or the death of its occupants, caused the suspension of the life of the state. The people could not meet except under the shadow of the higher imperium or auspicia—those of lesser patrician magistrates were of no avail; for the praetor, though technically a colleague of the consuls,[596] could not hold the consular elections[597]—and the city was in a state of suspended animation until the auspicia in all their purity should be restored, were it but to a single man. The auspices, meanwhile, have returned to the “fathers,”[598] and it is they only who can restore them. The first fundamental element, therefore, in the theory of the Roman constitution, however absurd it may seem, is that ultimate sovereignty rests with the patrician members of the Senate.[599] How this theory was put into practice, and what modifications the practice had undergone since the time of the monarchy, may be seen by examining the procedure consequent on a Republican interregnum.
The conditions requisite for an interregnum were the non-existence of consuls, or magistrates with consular power, or a dictator. The retirement of all the other so-called patrician magistrates, i.e. magistratus populi, was another necessary preliminary, for the auspices could not return to the patres so long as they were held, whether as majora or minora auspicia,[600] by a patrician magistrate.[601] Hence, when a sudden occasion arose for the appointment of an interrex, it was the duty of the Senate to give notice to the patrician magistrates and to request them to retire from office.[602] The plebeian magistrates still remained in the exercise of their functions.
It was, in the later Republic, the Senate which took all further necessary action. In the early Republic there was no possibility of its being summoned, and the patrician senators met at their own discretion to appoint the interrex. But after the tribune, who was still in office, had gained the right of transacting business with the Senate, it was he who put the question, and the Senate who suggested that the patricii should meet for the purpose. From this time onwards the electors felt no obligation to meet except on the suggestion of the Senate.[603]
The collegiate principle of the regal interregnum and the use of the lot[604] had both disappeared; the agreement of the patrician senators took the form of the election (creatio)[605] of a single interrex (prodere interregem). This magistrate nominated his successor, as the consul nominated the dictator,[606] each succeeding interrex holding office for five days. There was no limit to the number that might be created, the interreges varying from the minimum of two to the known maximum of fourteen;[607] but there must be at least two, the first being incapable of holding the consular election, probably because he was regarded as having received the auspicia irregularly. The qualifications for the interrex were, that he should be a Patrician[608] and a senator, and the instances seem to show that he was invariably chosen from the past holders of curule office.[609] The first interrex was no doubt guided by the wishes of the Senate, or of the patres, in the choice of his nominee, and the whole list may have been prepared before his appointment. With the creation of the highest regular patrician office, i.e. with the election of a single consul, the interregnum necessarily came to an end and the interrex retired.
The reappointment of a chief magistrate called the people into life again; and, as a rule, it perpetuated itself by perpetuating the magistracy. There was, indeed, one large section of the people which had a continuity of existence as a corporation—this was the concilium of the Plebs with its presidents, the tribunes. From the year 287 this concilium was an independent legislative sovereign, and nothing more clearly marks the theoretical dualism of popular sovereignty at Rome than the fact that one parliament could continue to exist while the other, the comitia in its various shapes, was dormant. The division of executive, judicial, even of deliberative power, is not uncommon in governments of the mixed type; the division of unlimited legislative authority is rarer and nowhere so clearly marked as in Rome; for an act of parliament did not require the co-operation of the two assemblies—the separate fiat of each had the force of law.[610] It is true that in practice this fundamental dualism was not acutely felt, for the individual elements of the Populus and the Plebs were to all intents and purposes the same. We may emphasise the practical similarity and the theoretical difference best by glancing at the two assemblies of the tribes. Except in elective matters they differed hardly at all in the sphere of their competence—each was a legislative and judicial assembly. But they were under the presidency of magistrates of different kinds, and this caused a slight difference in their constitution. When the tribunes of the Plebs summoned the people by tribes, the members of the few patrician families did not attend; when the consul or praetor summoned the people by tribes, the Patricians could be present.[611] A fundamental distinction in theory here produces little effect in practice.
While this dual sovereignty—harmless except for its incidental effect of the preservation of the tribunate—was a result of the course taken by the evolution of plebeian privileges, a far more serious consequence was produced by what we noticed as the second leading idea in the Roman constitution’s period of growth,[612] the weakening of the magistracy. This weakening—partly the result of a struggle for freedom, partly of accidental circumstances such as the distractions of war—from the first assumed a form which prevented Rome from ever expanding into a democracy. The early Greek states adopted the system of weakening the sole magistracy, first by dividing its functions amongst several holders, and then, when this was not sufficient, by deliberately taking powers from them and giving them to carefully organised popular bodies. In Rome the principle of division was not wholly unknown; thus the censorship and praetorship take over some of the functions of the consulate, but the principle of wholesale transference was entirely absent; even the usurpation of capital jurisdiction by the people was modified by the condition that they could meet only on the summons of a magistrate. The principle of weakening adopted at Rome was that of the increase of the number of magistrates, without any essential alteration of the character of the magistracy. The increase was effected partly by a consistent application of the principle of colleagueship, partly by the setting up of new powers in conflict with the old. The result was chaos. In the developed constitution there were twenty annual magistrates—ten tribunes, two consuls, eight praetors—each armed with the power of passing valid acts of parliament, and of vetoing the resolutions of his colleagues and inferiors. It is true that there was a legal subordination amongst them; the consul was inferior to the tribune, the praetor to the consul; and the rigorous application of law would have reduced the Roman constitution to an oligarchy of ten. As a matter of fact, the tribunate was too early enlisted on the side of the nobility to think of pressing its powers; dissension reigned within the college, and the history of the collective magistracy was one of perpetual conflict and therefore of weakness. In this weakness the people shared, for they were wholly dependent on the magistracy. In shaking the authority of their representatives they had shaken their own; and certain radical defects in the popular organisation, which we shall discuss when we consider the assemblies more in detail, added to their incapacity to rule. Since the guidance of magistrates and of people was equally impossible, and central government must reside somewhere, its fitting place was not unnaturally sought in the single experienced, permanent, and deliberative body in the state, the Senate.[613] The assumption of the reins of government by a power, which as an independent authority was not contemplated in the original constitution, necessarily gave rise to a body of constitutional custom by the side of the older constitutional law. The applications of this new code can only be estimated by a more detailed treatment of the three factors of government—the magistracy, the people, and the Senate.