A. H. J. Greenidge

“ The nebulous atmosphere of this mockery of a magistracy was as well suited to the despot as to the constitutional ruler. In the actual position of the Princeps within Rome we find traces of all these theories. As a provincial ruler he governs from the capital; as commander-in-chief he keeps his praetorian guards in Italy and his fleets at Ravenna and Misenum; while as the wielder of an undefined but civic imperium he gives justice, as a court of first instance or a court of appeal, and issues edicts to supplement the laws. ”

“ If the Senate appeared to the envoy of Pyrrhus to be an assembly of kings, he was looking at a body the members of which had for some period of their lives received the homage due to kings. The reverence for office as a holy trust, which is such a characteristic feature of Republican forms of government, was heightened in the Roman mind by its genius for abstraction, which saw in the individual holder of power not the magistrate but the magistracy, and by its almost superstitious veneration for the forms of law. ”

“ The new member moved in that narrow circle of ideas which through its very narrowness was strong enough to baffle Pyrrhus, Hannibal, and Philip, and to half complete the organisation of the world. The men that rose above it—Scipio, the Gracchi, Caesar—found endless difficulties in their path, and originality of conception, which is conspicuous by its absence in the organisation of the Roman Empire, led its possessors to exile, death, or monarchy. ”

“ Each people is protected by its own divine guardians; hence a war of two nations is a contest between their gods, and a treaty between two peoples a compact between their respective divinities. But each nation is to some extent under the protection of the other’s gods. Jupiter of Rome is powerless if the war commenced by Rome is unjust, and will punish his own people if they have stained his honour by violating a treaty. Even though there is no belief in community of guardianship, the rights of other peoples are still conceived to be under the protection of the Roman gods. ”

“ It is, in fact, the one principle that has a continuous history; election is the Republican interlude.
If, therefore, we are led to consider the monarchy as not purely an elective office, and substitute for election the principle of nomination, we must consider that it was the right, and probably the duty, of the king of Rome to nominate his successor. If there had been no due nomination during his lifetime, and consequently no distinctly marked out successor to the monarchy, the duty of providing such a successor lapsed to the Senate, from which body the interrex was appointed. ”

“ Perhaps Rome is the only state that has definitely invested the demagogue or “champion of the people” with a halo of sanctity. This was first given him by the people whom he championed. The Plebs on the Mons Sacer had sworn an oath to destroy any one who destroyed their tribune—an oath which they perpetuated to their descendants. The sanctity of the tribunes, therefore, had originally no valid religious ground, for the Populus had not pronounced such an offender to be sacer, nor had the oath been taken by a magistrate on behalf of the whole community. ”

“ In the provinces, too, all the sordid aspects of imperial humanity were removed; to the provincial mind Caesar was a potent and unseen power, a distant incarnation of wisdom and order, a being whose sway was far wider than that of any local god, whose ordinances penetrated to the ends of the earth, and in whose hands the safety and happiness of the human race were set. ”

“ This theory of the dependence of private on public rights, common to Greek and Roman law, probably accounts for the perpetual tutelage of women. The materfamilias holds an honourable position in the household; she is its queen, as her husband is its king, but yet she is subjected by marriage to the legal position of her own daughter, and, on her husband’s death, is in the custody of her sons; for a primitive society cannot be brought to believe that a being who cannot fight, and may not fill offices of state or exercise a vote, is capable of looking after its own interests. ”

“ The Roman Empire had been developed from a protectorate; it bears to the end of the Republican period the traces of its origin, and, in its lack of organisation, conveys the suggestion of being a merely provisional government. The merits of such system as there was cannot be ignored. The unrestricted imperium was necessary in time of war and, under a benevolent despot, might be useful even in days of peace, while the very absence of organisation betrays the noble belief that the aggregate of states which formed a province was rather a confederated suzerainty than an integral part of an empire. ”

“ Slavery may at all periods of the history of Rome be defined as an absence of personality. The slave was a thing (res) and belonged to that more valuable class of chattels which the Romans called res mancipi, and which included land and beasts of burden. He was, therefore, a part of the homestead (familia) , [97] the transfer of any portion of which required the most solemn forms of Roman law. As a thing, the master is said to exercise dominium over him; he might deal with him as he pleased, and had over him the power of life and death. ”

“ In private matters the authority of the state is weak, that of the individual strong. The rule of the Roman father was the benevolent despotism that embraces many within the sphere of its despotic interests, that forces others to observe its rights because its interests are not personal, that produces a deep sense of moral and religious responsibility towards the weak, a stern unyielding attitude towards the man who would infringe upon their rights. ”

“ Taking our stand at a period just before the Servian reforms, we find that private rights were possessed in varying degrees by all the members of the community. These rights are generally summed up as those of trade and of marriage (commercii et conubii) . The first is the legal capacity to acquire full rights in every kind of property, to effect its acquisition, and to transfer it by the most binding forms, and to defend the acquired right in one’s own person by Roman process of law (legis actio) . This commercium was possessed equally by the Patricians and the free Plebeians. ”

“ The only “individual” known to Roman law is the paterfamilias, but his was a glorified individuality, which, through its rule over the family, gathered strength to rule the world.
If it be thought that the loss of character must have been proportionally great in the case of the dependent members of the household, it must be remembered that the patria potestas is, for the individual, a transitory condition of things. Each subject member is preparing himself to be a pater in his own right. With the death of the existing head, all the hitherto dependent members are freed from the potestas ”

“ If it is objected that it becomes a living thing merely through a concession of the Princeps, the answer is that this concession was certainly not pictured by these Emperors to themselves as an act of grace, but was regarded as mere obedience to the constitution; and to maintain the theory that a constitution which demands obedience from the wise is a palpable fiction because it cannot enforce obedience on the headstrong, is to wring a strange admission from political science. ”

“ The narrowness of interest, the selfishness and the corruption, which are the besetting sins of a corporation with an assured tenure of rule, were also weakened in the case of the Roman Senate by the fact that, through the elective principle, it was always in constant touch with the people. It is true that the Senate was a parliament, the members of which were elected for life—a parliament, therefore, that might easily cease to represent the wishes of the electorate ”

“ Nothing shows more clearly the true military character of the new monarchy than the fact that even its civil and Republican posts were administered by [365] soldiers; nothing explains more adequately the subservience of the Senate than the fact that it was composed mainly of ex-officers, trained in the habits of rigid obedience and in unwavering respect to the sacramentum—of men to whom Caesar was not Princeps but Imperator. ”

“ A universal citizenship was also amongst the hidden treasures of the Empire, but it was a gift conferred in proportion to its valuelessness, and the Princeps whose edict was to make the world a city was a calculating spendthrift bent only on increasing the taxes of his subjects. But, since the golden mean of Empire had yet to be found, we cannot blame the Principate for doing too much that which the Republic did too little. Every reaction is violent, and in this instance at least over-government was intended to be in the interest of the subject. ”

“ It is more difficult to decide whether the radical change of government to which the agitation led can be considered a genuine triumph for the reformers. Military monarchy may be regretted by those who see in it a confession of incapacity to combine imperial government with Republican institutions; but, from the point of view of the reforming party, it was only a disappointment if we conceive that their leaders thought that government by comitia might replace the rule of the Senate. ”

“ Parallels between Roman and Hellenic organisation may be observed in certain institutions such as the equites and the census; but these are military rather than purely political, and in all the fundamental conceptions of public law—the rights of the citizens individually and collectively, the power of the magistrate and the divine character even of secular rule—Rome differed widely from the developed Greek communities with which she was brought into contact, and seems in her political evolution to have worked out her own salvation. ”

“ The crucial point in the creation of an emperor is his salutation by his army as imperator. Such a salutation did not mean that the general who accepted it was Princeps; it meant only that he was a candidate for the Principate. The act itself was one of revolution; its legality depended upon its success. Did the legions in other provinces accept the candidature, the Senate immediately fulfilled its formal task; did rival aspirants meet in battle, it was always ready to welcome the survivor. ”

“ Epidemics of crime, such as poisoning, arson, murder, seemed to demand the immediate exercise of the magistrate’s imperium, and for this exercise the Senate is the directing and controlling force. Such an exercise of magisterial coercitio at the behest of the Senate is practically a declaration of martial law, although the Senate by its decree does not create a new power, but simply urges the magistrate to set free the forces latent in his imperium. ”

“ As the negation of state life implied the negation of communal independence, we are not surprised to find that none of these communities of Roman citizens possessed a true civic organisation of its own. We cannot define the rights of their town-councils, we cannot assert the absolute non-existence of popular gatherings for certain purposes; but the absence of the imperium and of a true judicial magistracy is clearly discerned. These communes fell under the immediate civil jurisdiction, originally of the consuls, later of the praetor urbanus. ”

“ The limitation by which a series of civil rights is destroyed is spoken of as a “lessening of caput” (capitis deminutio) . It is in every case an infringement of rights already possessed by the individual. Now the loss of public rights could only follow on a loss of citizenship; but this is not the diminution but the annihilation of caput, and could not therefore in the earliest stage of Roman law (when there was no status recognised but that of citizenship) be called a capitis deminutio. ”

“ The belief that the gods do not give instruction, but merely advice, gave an “inward freedom” to the Roman, which made him at times resent the divine interference, and we shall find many instances of his forcing an interpretation to suit his wishes. The omen that is not seen need not be attended to, and precautions are taken that it shall not be seen. In undertaking acts of state, the magistrates are bound to ask for signs; but all the efforts of human ingenuity are directed to secure that the signs shall be favourable. ”

“ Finally, any liability incurred by the peculium could be recovered by creditors, the master’s right of deducting his own claims against it being preserved (actio de peculio) , and any material advantage derived by the master from the contract of a slave was taken into consideration and the property of the dominus made liable to that extent (actio de in rem verso) . [570] The slave, in fact, as having no personality of his own, is the best of agents, and the theory of agency, which the law of Rome has bequeathed to us, is one of the most perfect and permanent results of her system of slavery. ”

“ The first that we shall treat, the taking of the auspices, was as much a duty as a right. The observance of the auspicia publica is not merely an act that the magistrate may perform, but one that he must perform if his powers are to be duly exercised. The imperium and the auspicia are indissolubly connected; [673] they are the divine and human side of the same power, and every important act of human activity should be prefaced by an appeal for divine assistance. ”

“ The reason why the creation of an Italian senate or an Italian assembly might have warded off the monarchy is that such a body might have commanded respect even from the army of the provinces. This correspondence in sentiment might, it is true, have required that the army should remain mainly Italian; and Augustus’ attempt to give Italy something of a representative character may have been abandoned through fear of a conflict between an army which was becoming provincial in personnel and an Italian proletariate, when the choice of a Princeps had to be decided. ”

“ We cannot, indeed, say that there was a time when the Roman law regarded every crime as a sin, for from the very first we are confronted with a dualism, and religious and secular sanctions exist side by side. ”

“ But the more logical idea of absolute nullity, which required no repeal, subsequently prevailed, and we shall find that it is the Senate which, as the guide of the executive power, pronounces enactments to be invalid in consequence of formal flaws.
When we turn from the “people” in general to its manifestations in the separate comitia and in the concilium of the Plebs, we find that, although historically we are dealing with different parliaments, practically we are treating the Roman community engaged with different orders of the day under different formal rules. ”

“ The Roman was not ungrateful, and he recognised that it was the slave who made him an individual power in the world. The unequalled administrative capacity of men like C. Gracchus, Crassus, Caesar, and Pompeius, which has found no parallel in the modern world, was largely due to their absolute command of men of perhaps less originative power, but often of greater capacity for combination and detail than they. ”