The constitution and laws of Athens continued substantially for about a hundred years after the archonship of Solon, when the democratic party under Cleisthenes gained complete ascendency. Some modification of the laws was then made. The political franchise was extended to all free native Athenians. The command of the military forces was given to ten generals, one from each tribe, instead of being intrusted to one of the archons. The Ecclesia, a formal assembly of the citizens, met more frequently. The people were called into direct action as dikasts, or jurors; all citizens were eligible to the magistracy, even to the archonship; ostracism,--which virtually was exile without disgrace,--became a political necessity to check the ascendency of demagogues.
Such were the main features of the constitution and jurisprudence of Athens when the struggle between the patricians and plebeians of Rome began, to which we now give our attention. It was the real beginning of constitutional liberty in Rome. Before this time the government was in the hands either of kings or aristocrats. The patricians were descendants of the original Latin, Sabine, and Etruscan families; the plebeians were the throng of common folk brought in by conquest or later immigration,--mostly of Latin origin. The senate was the ruling power after the expulsion of the kings, and senators were selected from the great patrician families, who controlled by their wealth and influence the popular elections, the army and navy, and all foreign relations. Consuls, the highest magistrates, who commanded the armies, were annually elected by the people; but for several centuries the consuls belonged to great families. The constitution was essentially aristocratic, and the aristocracy was based on wealth. Power was in the hands of nobles, whether their ancestors were patricians or plebeians, although in the early ages of the Republic they were mostly patricians by birth. But with the growth of Rome new families that were not descended from the ancient tribes became prominent,--like the Claudii, the Julii, and the Servilii,--and were incorporated with the nobility. There are very few names in Roman history before the time of Marius which did not belong to this noble class. The plebs, or common people, had at first no political privileges whatever, not even the right of suffrage, and were not allowed to marry into patrician rank. Indeed, they were politically and socially oppressed.
The first great event which gave the plebs protection and political importance was the appointment of representatives called "tribunes of the people,"--a privilege extorted from the patricians. The tribunes had the right to be present at the deliberations of the senate; their persons were inviolable, and they had the power of veto over obnoxious laws. Their power continually increased, until they were finally elected from the senatorial body. In 421 B.C. the plebs had gained sufficient influence to establish the connubium, by which they were allowed to intermarry with patricians. In the same year they were admitted to the quaestorship, which office entitled the possessor to a seat in the senate. The quaestors had charge of the public money. In 336 B.C. the plebeians obtained the praetorship, a judicial office.
In the year 286 B.C. the distinctions vanished between plebeians and patricians, and the term populus instead of plebs, was applied to all Roman people alike. Originally the populus comprised strictly Roman citizens, those who belonged to the original tribes, and who had the right of suffrage. When the plebeians obtained access to the great offices of the state, the senate represented the whole people as it formerly represented the populus, and the term populus was enlarged to embrace the entire community.
The senate was an august body, and was very powerful. It was both judicial and legislative, and for several centuries was composed of patricians alone. Its members always belonged to the aristocracy, whether of patrician or plebeian descent, and were supposed to be rich. Under Augustus it required one million two hundred thousand sesterces annually to support the senatorial dignity. The senate, the members of which were chosen for life, had the superintendence of matters of religion and foreign relations; it commanded the levies of troops; it regulated duties and taxes; it gave audience to ambassadors; it determined upon the way that war should be conducted; it decreed to what provinces governors should be sent; it declared martial law in the appointment of dictators; and it decreed triumphs to fortunate generals. The senators, as a badge of distinction, wore upon their tunics a broad purple stripe, and they had the privilege of the best seats in the theatres. Their decisions were laws (leges). A large part of them had held curule offices, which entitled them to a seat in the senate for life. The curule officers were the consuls, the praetors, the aediles, the quaestors, the tribunes; so that an able senator was sure of a great office in the course of his life. A man could scarcely be a senator unless he had held a great office, nor could he often have held a great office unless he were a senator. Thus it would seem that the Roman constitution for three hundred years after the expulsion of the kings was essentially aristocratic. The plebs had but small consideration till the time of the Gracchi.
But after the institution of tribunes a change in the constitution gradually took place, so that it was neither aristocratic nor popular exclusively, but was composed of both elements, and was a system of balance of power between the various classes. The more complete the balance of power, the closer is the resemblance to a constitutional government. When one class acted as a check against another class, as gradually came to pass, until the subversion of liberties by successful generals, the senate, the magistrates, and the people in their assemblies shared between them the political power, but the senate had a preponderating influence. The judicial, the legislative, and the executive authority was as well defined in Roman legislation as it is in English or American. No person was above the authority of the laws; no one class could subvert the liberties and prerogatives of another class,--even the senate could not override the constitution. The consuls, elected by the centuries, presided over the senate and over the assemblies of the people. There was no absolute power exercised at Rome until the subversion of the constitution, except by dictators chosen by the senate in times of imminent danger. Nor could senators elect members of their own body; the censors alone had the right of electing from the ex-magistrates, and of excluding such as were unworthy. The consuls could remain in office but a year, and could be called to account when their terms of office had expired. The tribunes of the people ultimately could prevent a consul from convening the senate, could seize a consul and imprison him, and could veto an ordinance of the senate itself. The nobles had no exclusive privilege like the feudal aristocracy of mediaeval Europe, although it was their aim to secure the high magistracies to the members of their own body. The term nobilitas implied that some one of a man's ancestors had filled a curule magistracy. A patrician, long before the reforms of the Gracchi, had become a man of secondary importance, but the nobles were aristocrats to the close of the republic, and continued to secure the highest offices; they prevented their own extinction by admitting into their ranks those who distinguished themselves,--that is, exercising their influence in the popular elections to secure the magistracies from among themselves.
The Roman constitution then, as gradually developed by the necessities and crises that arose, which I have not space to mention, was a wonderful monument of human wisdom. The nobility were very powerful from their wealth and influence, but the people were not ground down. There were no oppressive laws to reduce them to practical slavery; what rights they gained they retained. They constantly extorted new privileges, until they were sufficiently powerful to be courted by demagogues. It was the demagogues, generally aristocratic ones, like Catiline and Caesar, who subverted the liberties of the people by buying votes. But for nearly five hundred years not a man arose whom the Roman people feared, and the proud symbol "SPQR," on the standards of the armies of the republic, bore the name of the Roman Senate and People to the ends of the earth.
When, however, the senate came to be made up of men whom the great generals selected; when the tribunes played into the hands of the very men they were created to oppose; when the high-priest of a people, originally religious, was chosen politically and without regard to moral or religious consideration; when aristocratic nobles left their own ranks to steal the few offices which the people controlled,--then the constitution, under which the Romans had advanced to the conquest of the world, became subverted, and the empire was a consolidated despotism.
Under the emperors there was no constitution, since they combined in their own persons all the great offices of state, and controlled the senate, the army, the tribunals of the law, the distant provinces, the city itself, and regulated taxes and imposed burdens as they pleased. The senate lost its independence, the courts their justice, the army its spirit, and the people their hopes. And yet the old forms remained; the senate met as in the days of the Gracchi, and there were consuls and praetors as before.
However much we may deplore the subversion of the Roman constitution and the absolute reign of the emperors, in which most historians see a political necessity, there was yet under these emperors, whether good or bad, the reign of law, the bequest of five hundred years' experience. The emperors reigned despotically, but under the forms of legislation. Nor did they attempt to subvert laws which did not interfere with their own political power. What is called jurisprudence they even improved, as that later imperial despot Napoleon gave a code to the nation he ruled. It is this science of jurisprudence, for which the Romans had a genius, that gives them their highest claim to be ranked among the benefactors of mankind. They created legal science. Its aim was justice,--equity in the relations between man and man. This was the pride of the Roman world, even under the rule of tyrants and madmen, and this has survived all the calamities of fifteen hundred years. The Roman laws--founded by the Republic, but symmetrically completed by the Empire--have more powerfully affected the interests of civilization than have the philosophy and arts of Greece. Roman jurisprudence was not perfectly developed until five hundred years after the Christian era, when Justinian consolidated it into the Code, the Pandects, and the Institutes. The classical jurists, like Gaius, Ulpian, and Paulus, may have laid the foundation, but the superstructure was raised under the auspices of the imperial despots.