Roman politics

by Frank Frost Abbott

Let us pass now to consider the relation which our political theories and institutions bear to those of Rome. A wise government aims to strike a judicious balance between the rights of the individual and the safety and welfare of the community. This happy mean can best be determined by watching the play of the two principles in concrete cases. Such an opportunity is offered to us by the history of the ancient city-state which sets before us examples in which the two ideals of government mentioned above are combined in varying degrees. These instances range from Athens which favored the freedom of the citizen to Delphi or Sparta which exalted the importance of the commonwealth.

We owe also to the Greeks and Romans the discussion of another fundamental political problem and various attempts to solve it. Is the ideal state a state ruled by one person, by a few persons, or by all the citizens? This question was discussed with great acumen and learning by Greek writers on political theory, and their views with certain modifications have been transmitted to us by Cicero in his treatise On the Commonwealth. Indeed the merits and defects of all systems of government have been exemplified in the history of Rome itself, which ran through the entire gamut of governmental forms.

The two most important Roman writers of the classical period on political theory were Cicero and Seneca. Unfortunately only a part of Cicero’s treatise On the Laws has come down to us, and only fragments of his book On the Commonwealth are extant, but these two works were known in their entirety to the early Roman jurists and to the Christian Fathers, and have exerted a great influence on them, and through them, upon us. Even in their present fragmentary form they show us what an important contribution Cicero has made to political philosophy. Quite outside the fact that he served as an intermediary between Greek political thinking and that of our own times, his two works are of great value to us, both because of Cicero’s method of approaching the subject of the state and because of his conception of the organization of society. Most of Cicero’s predecessors, with the exception of Panaetius and Polybius, direct their attention to the ideal state, to an imaginary commonwealth. Cicero in his Commonwealth, De Re Publica, II. 1. 3, tells us that it is his purpose to study the Roman state “in its birth, its growth, its maturity, and in its present strength and vigor.” In other words he introduces the modern method of studying the organization of actual states, and we have set forth, perhaps for the first time, the fruitful conception of the state as an organism.

In discussing the organization of society, Cicero finds the source of law and justice, not in utility, but in nature. Right and wrong are determined naturae norma, (De Legibus, I. 16. 44). This law of nature is not one thing in Rome, another in Athens; it is not one thing today, another tomorrow, but it is eternal and immutable, (De Re Publica, III. 22. 33). This conception of the ius naturale was taken up by Ulpian in the third century and by other early jurists, developed in the Code of Justinian, and handed down through the Middle Ages to our own time. It covers “that body of principles of justice and reason which men can rationally apprehend, and which forms the ideal norm or standard of right conduct and of the justice of social institutions.” From the Civil law it passed into Canon law through the encyclopedic work of St. Isidore in the seventh century, and gave rise to the tripartite division which Gratian sets forth in the Decretals, when he writes: “Ius naturale appears with the beginnings of the rational creation, and remains unchangeable: the ius consuetudinis (i.e., the ius gentium) had its inception later, when men began to live together.... But the ius constitutionis (i.e., the ius civile) begins with the principles which the Lord delivered to Moses,” i.e., with written law. These distinctions have furnished the starting point in most modern discussions of the subject. Cicero defined the Commonwealth as “the affair of the people, but the people is not any assemblage of men, gathered together in any fashion, but a gathering united under a common law and in the enjoyment of a common well being,” (De Re Publica, I. 25. 39). From this definition he seems to imply that the state has a twofold purpose, to protect the individual, and to promote his welfare. In one passage in his Commonwealth, (De Re Publica, III. 13. 23), he makes a speaker in the dialogue enunciate a theory of the state, out of which Rousseau may well have developed his doctrine of the Social Contract: “But when one person fears another, when man fears man, and class, class, then, since no one trusts his own strength, a compact is made between the people and the rulers, out of which springs that which Scipio approved—a state whose form is determined by agreement.” This theory of the Social Compact, probably derived from Cicero, was put forth again in the eleventh century. So far as the form of the state goes, it may be monarchical, aristocratic, or democratic, or these three elements may be combined in it, as Cicero thought they were in the Roman state; Cicero followed Aristotle and particularly Polybius, in the latter’s discussion of the constitutions of Rome and Sparta. The views which Cicero held on this point were taken up for consideration and emphatically denied by Jean Bodin in his great work on the state in the sixteenth century.

Cicero regards any government as legitimate which secures justice and promotes the well being of all its citizens, but he is dissatisfied with monarchy or aristocracy. As the Carlyles have remarked, in their History of Mediaeval Political Theory in the West, which has been of great service to me at many points in this chapter in tracing the development of Roman political doctrines through the Middle Ages, Cicero believed that “every citizen had in him some capacity for political authority, some capacity which ought to find a means of expression.” Another fundamental social conception which comes to the surface in Cicero, and is still more clearly stated in Seneca and Marcus Aurelius and the Christian writers, is that of the homogeneity of the human race, the brotherhood of man. To the Greeks, before the time of Stoicism, there was a great gulf between themselves and the barbarians. The Romans showed sometimes a similar contempt for other people, but they recognized the intellectual and artistic superiority of the Greeks. A century and a half before Cicero’s time Plautus seriously or humorously refers to his countrymen as barbarians, when compared with the Greeks. In other words the Romans believed in their own superiority in some fields of human activity, but recognized their inferiority to other peoples in other respects. This made them tolerant of the institutions and practices of races which were brought within the Empire, and formed the basis of that conception of the brotherhood of man which did so much to ameliorate the condition of the lowly, and which is the ideal towards which we somewhat ineffectually strive today. Allied to this cosmopolitan doctrine of the brotherhood of man, was the Roman doctrine concerning the composition of individual societies or states. Aristotle’s theory of the organization of society presupposes the inequality of the men who compose it. Cicero believed in natural equality. We are alike, he says, in esteeming the same virtues, in hating the same vices, in our possession of reason and in our capacity for acquiring knowledge. Seneca is almost at the point of extending this conception of natural equality to include even slaves, for, as he says in his treatise on The Giving and Receiving of Favors: “fortune has granted the slave’s body to his master, he buys it and sells it, but the soul of a slave can not be bought and sold.” We shall have occasion to return to this point later, but, while we are speaking of Seneca, it may be well to mention his explanation of the origin of the law of nature which was discussed a few moments ago. The existence of the ius naturale presupposes a state of nature antecedent to the conventional institutions of society. This golden age was not one of perfection, but rather of innocence. Avarice brought it to an end. The institutions of society were made necessary by the weaknesses of human nature. This view of Seneca harmonized with the conception which the Christian Fathers later held of the condition of man before the Fall, before sin came into the world, and has been transmitted by them to us.

To return now to the doctrine of the natural equality of men and to the belief that the universal capacity for the exercise of political authority should find adequate expression, out of these principles grew the doctrine which Roman lawyers from the second to the sixth century have noted here and there in the Codes, that the power which a government exercises is derived from the people. This source of authority the emperors recognized in the Codes up to the time of Justinian. As the Carlyles have shown, this doctrine was accepted by the lawyers in the Middle Ages. It applies to judicial authority, as Bulgarus of Bologna teaches in the twelfth century, and to legislative power, as Irnerius of the same century holds. Their arguments come from the Roman period, because they are drawn from the Corpus Iuris Civilis, and they borrow phrases from the Digest and the Code. The question naturally arose in their minds whether the people could resume their authority or not. Scholars were divided on this point. Some of them maintained that the popular will still found expression in custom, and that therefore custom could override law. Most of them believed that universal custom had this power, but that local custom did not. Consequently they held that the sovereignty of the people still found expression in custom. In passing we may note that we have here the distinction between “unwritten” and “written” law or between common law and statute law. The theory that the authority in the state emanated from the people continued to be the prevailing doctrine as late as the middle of the thirteenth century, as the Carlyles have shown. It is maintained by Nicholas of Cues in the fifteenth century. In his Systematic Politics, Confirmed by Examples from Sacred and Profane History, published in 1610, the Calvinist, Johannes Althusius, carried the doctrine to its logical conclusion that, since the authority in a state rested on a contract between the people and their ruler, the people had the right to depose him and resume their delegated power. Hobbes in his Leviathan, which appeared in 1641, believed in the principle of the contract, but in his opinion the compact is made by the members of society with one another. The ruler does not enter into the covenant. Consequently he is not bound by it. The radical teachings of Althusius lay dormant for a century and a half, to be taken up by Rousseau in his Contrat Social and to form the basis of the famous “Declaration of the Rights of Man” of 1789.

As Pollock has put it in his Introduction to the History of the Science of Politics: According to Rousseau “every man gives up himself and his individual rights as fully as in Hobbes’ covenant. But the surrender is to the whole society, not to a sovereign. The government is not the sovereign, but a mediator between the community in its corporate capacity and its individual members as subjects.” In his History of the Theory of Sovereignty since Rousseau, Merriam has traced the development of the doctrine into our own times. The conclusion at which he arrives for our own day is that “those who adhere to the sovereignty of the general will or of public opinion, sentiment, reason, do not mean that this sovereign is at any given moment organized to express the will of the State; they mean that it is to be obeyed, not immediately but ultimately.” Modern theory therefore has come back to the position of Cicero and the Roman jurists, although, as Bryce has said in his Modern Democracies, the acceptance and development of the doctrine of popular sovereignty by Rome, “was due to the pressure of actual grievances far more than to any theories regarding the nature of government and the claims of the people.” Before leaving the subject of popular sovereignty it is worth while noticing the limitations under which it is exercised even in a pure democracy and the transformation which a democracy inevitably undergoes. On the first point, if we recall the history of the Roman Republic which has been sketched in the preceding chapter, we shall feel that, although Bryce is speaking of modern democracies, no more accurate description can be given of the limitations which hemmed in the Roman democracy than is to be found in his statement that “popular powers are in practice more frequently negative or deterrent than positive. The people can more readily reject a course proposed to them than themselves suggest a better course.” Equally applicable to the history of the patriciate, the senatorial oligarchy, and the plutocracy under the Republic is his remark, drawn from a study of modern conditions, that “nature is always tending to throw power into the hands of the Few, and the Few always tend by a like natural process to solidify into a Class, as the vapours rising from the earth gather into clouds. Fortunately the Class, by a like process, is always tending to dissolve.... Thus Free Government cannot but be, and has in reality always been, an Oligarchy within a Democracy.”

The opposite doctrine to the one which we have been considering, that of the divine right of kings, comes to the surface sporadically in the Code of Justinian, but it is not definitely formulated until we reach the time of Gregory the Great in the sixth century. He develops the new doctrine fully in his Pastoral Rules and in his treatise on the book of Job, as the Carlyles have shown, and it is from him that it passed down into the Middle Ages and into later times. The Carlyles trace its development to three causes: (1) the need of checking the anarchical tendency of the primitive Church; (2) the favored position which the Church had under the protection of the Emperor after the conversion of Constantine; and (3) the influence of the Old Testament conception of the position of the King of Israel. The teachings of the Old Testament were reinforced by those of the New Testament. In the Epistle to the Romans we read, for instance: “Let every soul be subject unto the higher powers. For there is no power but of God; the powers that be are ordained of God,” and elsewhere: “Submit yourselves to every ordinance of man for the Lord’s sake; whether it be to the king, as supreme; or unto governors, as unto them that are sent by him for the punishment of evil doers, and for the praise of them that do well,” I. Peter, ii. 13-14. This second explanation of the source of authority in the state, which the phrases used by the Roman jurists occasionally suggest, was accepted by the early Church and transmitted by it through the Middle Ages to modern times. The king was answerable only to God. To resist him was impious.

A modification of the theory of the divine right of kings comes in as the influence of the Papacy increases. Dante in his work On Monarchy has stated the situation clearly, when he writes: “Therefore man had need of two guides for his life, as he had a twofold end in life; whereof one is the Supreme Pontiff, to lead mankind to eternal life, according to the things revealed to us; and the other is the Emperor, to guide mankind to happiness in the world, in accordance with the teaching of philosophy.” But unfortunately these two fields of activity overlapped each other, and it was not easy to say what the theoretical and practical relation of these two supreme powers to each other was. Pope Leo III had placed the crown on the head of Charlemagne in Rome in the year 800. What the Pope had given in the name of the people of the Roman world, he could take away, and at the death of an emperor, the control of the empire returned to the hands of the Pope. The great Pope, Hildebrand, in the eleventh century held firmly to this theory. As the Carlyles have pointed out, he had a search made in the papal archives and found what he believed to be convincing evidence of the feudal dependence of the different kingdoms of Europe on the Roman See. In the next century the great English scholar John of Salisbury writes in his Policraticus: “the sword, the symbol of worldly power, the prince receives from the hand of the Church.” Feudalism inculcated the idea that each man owed allegiance to some one above him, the vassal to his lord, the lord to the prince, the prince to the Emperor, and it was only natural to complete the system by deriving the power of the Emperor from the Pope, whose responsibility was to God. This conception of the Pope as the ultimate source of authority throughout the world with his seat in Rome continued the tradition of the unity of the Roman Empire, which, as we shall soon see, was one of the most potent influences at work throughout the Middle Ages. The history of medieval political theory and practical politics in the Middle Ages turns largely upon the conflict of these two doctrines, that the secular ruler received his authority from the people or directly from God, or that it came to him from the Pope, the vicegerent of God.

Bryce’s dictum that “every Monarchy becomes in practice an Oligarchy” sums up the story of the Roman Empire. The Emperor could not in person attend to all the business of the state. He had to organize the government in departments, and delegate authority to the men whom he put at the head of these departments. This was the plan, which, as we noticed, Hadrian brought to completion in the organization of his bureaucratic system, and we are not surprised to find in the Codes of Theodosius and Justinian abundant evidence of the unrestrained power which this oligarchy exercised. Both the monarchies and the democracies of today are adopting the Roman plan in the one form or the other. In Germany and in certain other Continental countries before the World War a highly organized bureaucratic system had been developed, while in the United States we have temporary or permanent Federal commissions and boards, like the Interstate Commerce Commission, the Coal Commission, and the Railroad Labor Board, and many of the States have public service commissions. All these have been added in late years to the traditional bureaux and departments. “Government by commission” has become a political catch-word, in some of our electoral campaigns, and some of our political leaders fear that the intrusion of the Federal or State government into the matters of everyday life and into local affairs will restrain individual initiative and undermine the integrity of local government. This result, at least, followed the development of the paternal and bureaucratic system of Rome.