The Beginnings of the Roman State

by Theodor Mommsen (1817-1903)

 

 

The city of Rome wasn’t built in one day. However how it happened that Rome from so early on achieved such prominent position in Latium deserves some consideration, because the local conditions of the area rather suggest the opposite.

The ground, on which Rome is located, is less healthy and less fertile than most of the old sites of the Latin people. The grapevine and the fig tree are not growing well in Rome’s near neighborhood and the supply of spring water is insufficient, because neither the otherwise excellent source at the Capenian gate nor the later constructed Capitolenian well at the Tullianum is particularly rich in water. Add to this the frequent flooding by the river, which, because of its shallow run, in the raining season is not able to send the gathering water soon enough to the ocean and therefore leaves the open ground between the hills flooded and soggy.

For a new colonist this surrounding is less than inviting, and it has been said since ancient times, that this unhealthy and infertile spot within an otherwise blessed land could not have been the natural choice for migrating farmers, and so rather was chosen under some kind of pressure or the city was founded here for a particular purpose.

Even the legends convey a feeling of strange circumstances; the tale of the founding of Rome by exiles from the ancient city of Alba under the leadership of Romulus and Remus, two exiled princes from Alba’s dynasty, is nothing but a naïve attempt of earliest semi-history to explain the strange phenomenon of this city’s location in such unfavorable place, and at the same time to connect the founding of Rome with the more ancient seat of government in Latium. History has to stay clear from such fairy tales which pretend to be history when in fact they are not even very intelligent etiological legends; but perhaps history may even be able, after due consideration not so much of the local circumstances but the reasons for the quick and conspicuous success of the settlement, to go one step further and come to positive conclusions about its exceptional status in Latium.

Everybody with any knowledge of the Romans and their history can’t help realizing that the particular features of their public and private life stem from their statecraft and their economical acumen, and that what sets them apart from all the other Latin people is an expression of the difference between the urban denizen and the peasant.

In the natural state of a community which is meant to last, there can be no overlord, at least not among the Romans who associated as equals in a society of free peasants, and were neither subject to a nobility nor to the ideas of divine right. Therefore one of their own was their director (rex) and head of the house in the Roman community, with the well guarded storeroom of the people beside his residence and with the hearth of the eternal fire - the Roman Vesta and the Roman Penates - all of it a symbol for unity of the common household.

By law the royal prerogative was set in motion the moment, when after a vacancy in the office, the successor was appointed, but full compliance from the people was owed to the king only after he summoned the assembly of every free man bearing arms and had formally received their oath of allegiance. Only then he was in full possession of his powers over the people, as befits the head of the household, and like a father’s, his rule was for life.

He communicated with the people’s deities, to which he sacrificed and inquired omens (auspicia publica), and he appointed all the priests and priestesses. His agreements with foreign powers in the name of the people were binding for the entire nation, although apart from this no individual citizen was bound by any contract with non-citizens.

The king’s power (imperium) was absolute in peace and war, therefore the bailiffs (lictores, from licere - to burden) with axes and rods walked everywhere before him on his functions in office. Only he had the right to address the people in public, and it was him who kept the key to the treasury. He had jurisdiction and like a father the right to punish. He passed sentences for misdemeanor, especially disciplinary floggings during times of war. He was the judge in all civil and criminal matters and had absolute power over life, death and freedom to the extent that he could decree a citizen’s servitude towards another citizen or even towards a foreign country.

He was entitled to yield to the people’s appeal against a capital verdict, but this was not an obligation. He called the people to arms and he was the commander of the army in the same fashion as his personal appearance was required at a burning house after a fire alarm.

In the same way as the head of the house is not necessarily the most powerful individual but the one in power, so was the king not the first among the grandees but the only source of power in the state. He could appoint a committee of experts on sacred customs and public law, he could ease his burdens and delegate some of his prerogatives, such as announcements to the citizenry, the command in times of war, the trial of less important cases, the detection of crimes; when leaving town, he could appoint a chief of police (praefectus urbi) with all the powers of a deputy; but each delegated duty was derived from the royal prerogative and each official was in office only by the king’s will and only for the period of the appointment. All officials of the most ancient period, the deputy as well as the chiefs of the departments (tribuni, from tribus, the section), of the infantry (milites) and the cavalry (celeres), were nothing more than representatives of the king and by no means yet magistrates as in later times.

There was no legal restriction on the royal prerogative and could not be, since for the head of the community there can’t be a judge from within the assembly for the same reason that there is none within the household for the head of the house. Only death would put an end to his powers.

The election of a new king was left to the council of the elders, who during the vacancy inherited the royal prerogative, the interregnum.

For the citizenry a formal say in the election procedure opened only after the appointment; royalty was legally a function of the permanent council of the fathers (patres), which in the interim were in charge of all the powers and installed the new king for life. This was the way how “the divine blessing under which the eternal Roma had been founded” was passed on to the successor and how the state’s unity was preserved despite of the change in office.

The people’s unity, of which the Roman Diovis was the religious symbol, found its representation in the person of the prince, and therefore his regalia were the same as for the highest deity: the chariot - even within the city limit where everybody else was to walk on foot - the ivory staff with the eagle, the red paint in the face, the golden wreath of oak leaves. They were the insignia for the Roman god as well as for the Roman king. Yet it would be a grave error to conclude from this that the Roman constitution was a theocracy. Never in Italy have the notions of god and king been confused in such way as happened in Egypt and the Orient. The king was not the people’s god, but rather the proprietor of the state. Therefore nothing is known of a dynasty’s divine right or some mysterious magic that would have elevated the king’s person above the common run.

Nobel birth and kinship with the previous ruler may have recommended his election, it was not a condition; in fact every Roman man in good health and full possession of his rights could become king. So the king is just an ordinary citizen who achieved his position by virtue of merit or fortune or rather for the necessity that in every house somebody has to be the leader of his own kind, such as a farm is run by the squire and a platoon of soldiers is commanded by a ranking officer.

As the son is subservient to the father’s will without considering himself being less of a man than his father, so did the citizen give way to the ruler without thinking of him as the better man. That was the true moral ground and factual limitation for kingship.

In real life the king was able to perpetrate many injustices without actually breaking the law; in times of war he could withhold from his soldiers their due share, he could burden the community with excessive levies, or impose on the people’s property with unnecessary requisitions. But if he did so, he forgot that his powers had been bestowed not by divine right but by agreement of god and the people whom he represented, and who was there to protect him, if the people decided to forget their oath of allegiance? The legal limit to his royal powers lied in the fact, that the king only could enforce law, but was not entitled to change it.

Every change in the law depended on approval by the assembly and the council of the elders or it became an act of tyranny with no legal obligation.

So in a moral and legal sense the royalty in Rome was fundamentally different from our modern understanding of sovereignty and generally in modern life there is little left that could still resemble a Roman household and the Roman state.

The citizenry was organized on the base of committees, the “curia;” ten committees comprised a full assembly, each committee supplied the army with one hundred infantry, ten horseman, and ten councilors. Within the general assembly of all the assemblies each is a section or tribe (tribus) of the total (tota) and thus multiplies the numbers. Such organization reflected on the human resources of the citizens, and was also directly applied to the register of the arable land as far as it already existed.

That there were territorial boundaries not only for individual possessions but for an entire curia can barely be doubted and is preserved in the traditional names. Beside the names we would expect for the presence of a clan - like the “Faucia” - there were also local names like “Veliensis.”

Each name, in those days of communal agriculture, was standing for a whole group of households. In its simplest form this constitution foreshadows the structure of the later municipal charters for Latin colonies under Roman influence. Everywhere they had a senate of one hundred councilors (centumviri). But even in the most ancient traditions about the city of Rome which speak of thirty committees, three hundred horsemen, three hundred senators and three thousand infantry, these figures are derived from the basic unit of the curia.

Nothing seems more certain, than that this most ancient constitution had not originated in Rome itself, but was a piece of prehistoric custom, common to all Latin people, reaching back perhaps even beyond the branching out of the Indo-European tribe. The, in such matters rather credible constitutional tradition, which knows to tell a tale for every piece of civic organization, allows for the committees only a date of origin after the founding of Rome, and accordingly the constitution of curias not only made its appearance in Rome, but, as confirmed by recent findings, was a fundamental building block for the constitutional charters of every other Latin township.

The hard core of the charter was and remained the assembly in curias. The various dynastic clans assembled in the committees, but their territorial boundaries like those of the households were a feature of nature.

There is no trace in the traditions of Rome, that the legislator ever intervened and broke up the big families in several branches, or acknowledged their differences in number, or united several of the smaller clans; in any case this must have happened on the smallest scale and didn’t interfere with the network of kinships. Therefore it would be wrong to consider the number of clans or of the households as a legal fixture. So when the curia provided a hundred foot soldiers and ten horseman, it is neither probable nor plausible that there was one horseman from every clan and one foot soldier from every household. The truly essential element in the most ancient constitution were the committees of which there were ten, and if there were subdivisions, then again ten in each part.

Such assembly was a truly corporate unit, whose members at least for the festivals came together each under the direction of a chairman (curio) and with their own priest (flamen curialis). Without doubt taxation and levis were assessed accordingly and in the general assembly the citizens gathered under their curia’s color and voted in blocks at their own ballots.

However the structure was not introduced to facilitate voting, otherwise the total of all committees would have been an uneven number.

No matter how uncompromising the citizen was in his antagonism to the non-citizen, among his peers he moved with absolute confidence in his equality before the law. Perhaps no other people on the planet has ever equaled the Romans in the strict and uncompromising exercise of both principles. The full weight of the legal antagonism between citizens and foreigners is nowhere more visible than in the age-old institution of the honorable citizenship, which initially was meant to take away the edge between the groups.

If the assembly allowed the foreigner to enter the circle of citizens, he could discard his previous citizenship and so completely cross over to the new community, or hold on to his previous rights in combination with the new status. This was the custom in Greece, and always had been since ancient times, and it was not uncommon, that one man was a citizen in several states. Yet the more lively sense for community in Latium would not tolerate that anybody could belong to two different communities. In the case where the new citizen insisted on holding on to his previous status the honorary citizenship became merely a nominal award that gave a form to the usual obligations for hospitality and protection as it was customary towards the foreigner since times immemorial. But hand in hand with this strict observance of boundaries towards the outer world went an absolute determination to exclude any difference of legal status between the members of the Roman citizenry.

Privileges from within the household, which could not be eliminated, were ignored in public life. A son who at home was subservient to his father’s will, may have been his superior in his public function. There was no aristocratic privilege.

So it was only the office that created differences in legal status; apart from this, equality before the law was even a feature of individual appearance. The garb signified the difference between the director of the community and its members, between the adult draftee and the adolescent, yet was not to set apart the rich and wellborn from the poor and lowly, who in public wore the same simple toga spun and woven from white colored wool. This perfect equality of all citizens before the law, without a doubt, has its foundation in the tribal constitution of the Indo-European people, yet in this strict execution was even more a characteristic of the Latin nation. That the states’ budget was provided by the citizenry, goes without saying.

The most important of the civic duties was service in the legion, the draft (legio), because only the citizen had the right to bear arms. As a rule the king himself was the commander.

Besides of service in the army the citizen could be burdened with other duties as well, such as royal appointments in war and peace, and the levies to work the fields or for public construction projects. How difficult to bear a burden this could be, can be seen in the fact that the term for forced labor (moenia) has become the name for the city’s wall.

Direct taxation however was as unknown as a public budged. The necessary sacrificial animals for acts of public worship was provided by a tax on legal actions, which in proportion to the object of dispute charged the losing party with a penance payable to the state in the form of animals (sacramentum). There are no reports on donations to the head of state by the citizenry. On the other hand the king collected the import duties at the harbor, as well as the revenues from the public domain, such as taxes (scriptura) raised when the public drove their cattle on the public pastures, and a percentage of the crop from public land (vectigalia), which the proprietor was obliged to turn in, instead of paying a fee. In a state of emergency the state asked for a general donation (tributum), which however was perceived as a forced loan later to be repaid in better days.

Whether this was a duty laid upon the citizenry, or merely on the foreign resident we no longer know; but the latter seems more plausible.

The king oversaw the finances; however the royal estate, which according to our sources about the last Roman kings - the Tarquinians - must have been considerable and included extended possessions of land, did not combine with the public income, and especially the land annexed through conquest had always been part of the public domain. How, and to what extend, the king had been limited in the use of public funds is no longer possible to ascertain; yet later developments indicate that the assembled citizenry was never asked for an opinion, although it may have been customary to discuss with the council of the elders the raising of tributes and the distribution of arable land conquered in times of war. This is confirmed in the use of language. When it is supposed to denote a locality, the address never speaks of citizens (quirites) but of the people of Rome, or Romans (urbs Roma, populus, civis, ager Romanus), whereas the term for citizens (civis, or miles) never points to a locality. Therefore the use of these terms should not be mixed up: one doesn’t say “civis quiris,” because both terms denote the same legal fact but from different points of view. Thus the ceremonial announcement that “this soldier has made his exit to the dead” (ollus quiris leto datus), as well as the king’s address to the people in the court of law, employs the term “qhirites” according to the rights of free men (ex iure quiritium, or: ex iure civili).

However the Roman citizenry was not just there to bear the burden of duties, it also participated in public administration.

To this end everybody, except for the women, children and adolescents, assembled at the forum whenever called upon by the king, to receive his message (conventio, contio) or on the appointed day in every third week (in trinum noundinum) when the committees (comitia) or curias came together for the king’s enquiries. There was a schedule for a general assembly twice a year on the 24th of March and the 24th of May, or whenever it was thought necessary to bring together a formal meeting. It was always the king who invited to the meeting, not to hear the citizens speaking, but to have them listen, and answer to his questions.

Nobody spoke in the assembly but the king, or whoever he thought opportune to give the word; the citizen’s speech is simply an answer to the king’s question, without debate and explanation, without caveats and delegating to an other speaker.

All the same, the Roman assembly of citizens, like similar assemblies of the Indo-European people since times immemorial, was the actual and final source for the idea of the sovereign state; yet this sovereignty was based on the order of business and expressed itself in the obedience to the leader on their own free will. It was to this end, that the newly invested king asked the assembled committees, whether they would be loyal and obedient and according to custom prepared to accept him and his bailiffs (lictores); a request that was not supposed to be denied, just as the quite similar oath of the feudal lords under a medieval dynasty.

It was therefore logical, that the assembly, like a modern constitutional monarch did not interfere in the course of public business. As long as public business was limited to the execution of existing law, the actual sovereign cannot and shall not interfere. It is the law that rules, and not the legislator.

But things differ when the agenda is a change in the law or circumstances that require a deviation from it; then the Roman citizenry became an active part even in the Roman constitution, and such act of sovereign power was conducted in cooperation between the people and the king or the interregnum. In the same fashion as the legal intercourse between ruler and ruled was conducted and sanctioned through a verbal exchange, so was the sovereignty of the assembly enacted by a formal question (rogatio), which the king directed to the citizens, and which had been approved by the majority of the committees, in which case an affirmative answer could not be refused. For this reason, law to the Roman mind was not, as we use to understand it, the sovereign’s decree to every member, but first of all a contract, a negotiated agreement, between all the powers that constituted the state. “Lex” (the commitment, also related to legare, to commit to something) is generally known to mean a contract, an agreement in which one party proposes the conditions and the other side either accepts or refuses, as happens in public litigations. In the lex publica populi Romani the proponent is the king and the accepting party the people; the formula expresses precisely the limited participation by the latter. Such litigation was required for every case that was in contravention to established law.

Under normal circumstances everybody was entitled to pass on his property to everybody he chose, yet only by giving it up immediately; that property for the moment remains in the owner’s hands and only after his demise passes on to an other person of his choosing, was a legal impossibility, except the assembly gave its explicit consent, which could be demanded not only on the forum but also on the battlefield. This is the origin of the will.

Normally a free man could not lose or give away the inalienable possession of his freedom; therefore nobody, who was not subservient to a patron, could submit himself to somebody else as his son, except the assembly was consenting to a formal adoption.

In normal circumstances citizenship could only be acquired through birth and never be lost, except the assembly bestowed the patrician status or permited its forfeiture, which certainly wasn’t legal without consent in the committees. Normally, a man, if convicted of a capital crime by either the king or his appointed representative, was inevitably due for execution, since the king could only pass the verdict but was not entitled to give an amnesty, except the convicted citizen appealed to the mercy of the assembly and the judge listened and gave way for a pardon. This was the beginning for the right of appeal, which therefore was preferably not conceded to the unrepentant criminal who had been proven guilty, but to the apologetic plea with a claim on mitigating circumstances.

Normally a treaty with a foreign power was a binding obligation, except the assembly considered it nil and void, because of violations by the other side. Therefore it was a necessity to ask the assembly’s permission if a war of aggression was intended, yet permission was neither asked for a defensive war, where the other state was in breach of agreements, nor for negotiating the peace; yet it seems the question was not actually directed to the assembly on the forum but to the assembled army.

So generally, whenever the king planed some innovation, a change in common law, it was necessary to ask for the assembly’s consent; hence, since times immemorial, the right to legislate was not the right of the king but a right of the king and the people. In these and similar cases the king without the cooperation of the assembly was not able to act legally within his rights; the unconfirmed naturalization decree by the king left the applicant still with the status of a foreigner despite of the practical implications for this presumptuous undertaking.

In this sense therefore, the general assembly, no matter how limited in its movements, was the age old constitutive element in the Roman constitution, and by right rather above the king than a partner on equal terms.

Yet beside the king, and beside the assembly, there appeared in the most ancient constitution a third power, not meant to act and decide as an executive, like the king, nor to legislate, like the assembly, and yet within its own rights overruling king and people. This was the council of the elders or the senate (senatus).

Without doubt this council was a development of the dynastic clan structures: from a legal point, the ancient tradition, that originally in Rome all the heads of a household had assembled in the senate, is correct, as far as each of the clans which hadn’t immigrated at a later point in history, drew his descent from one of those ancient patriarchs as their founder.

It is plausible that there was once a time in Rome, or Latium, where every clan and family had a dynastic tradition and chose the head of the house under one or other principle of dynastic inheritance. So in those days the gathering of these heads of the families in the senate was the general assembly of the clan elders, in a manner of speaking a representative parliament, and accordingly independent from the king as well as from the general assembly of all citizens.

However any form of independent existence for the clans outside of the Latin tribe had been already extinguished since times immemorial and was perhaps the first and most difficult step on the road towards fully developed statehood and citizenship, and it had been accomplished in Latium long before the founding of Rome. The way a Roman dynasty represented itself was without a chief of the bloodline, but as a community of common descent - or the claim to common descent - from an ancestral patriarch, which gave to none of the living descendants a claim on preferred status; so that even the inheritance of a deceased member and the guardianship over minors could be claimed by every other member of the clan.

Nevertheless, much of the original ways in the council of the elders had rubbed off on the legal proceedings in the Roman senate; in a piece: the position of the Senate according to which it was more than a mere council in matters of state, but also was an assembly of the king’s confidants, depended largely on the fact that once upon a time it had been an assembly like the one Homer is telling about in the Iliad, where the king is surrounded and counseled by the princes of the people.

As long as the senate represented the assembly of the clan elders, it could not have had a fixed number of members, since there wasn’t such number for the total of all the clans. But since earliest times, perhaps even before the Romans, the number of members in the council of the elders had been limited to one hundred regardless of the actual number of existing clans. Accordingly the union of the three original assemblies led to an increase of seats in the senate to the customary three hundred as a legal necessity.

To be senator has always been an appointment for life, and even when in a later period this became more a matter of custom than right, and the occasional revision of the senatorial list offered an opportunity to dispose of the unworthy or just unpopular counselor, this was clearly a later development.

Since there existed no longer chiefs of the clans, the appointment of a senator became the king’s prerogative, but in the early days, with a more pronounced dynastic individuality, the king may have replaced a deceased senator by an other member of age and experience from the same clan. Probably this changed only with the ever tighter integration and unification of the people and the choice for the appointment became entirely a matter of free consideration by the king, so that it had an appearance of tyrannical abuse, if he left positions open without any new appointments.

The authority of this council of the elders rested on the idea, that rule over the assembly by right belonged to all the heads of the clans together, since the entire populace was composed of all the clans, although it could only be executed by one of the elders, the king.

So each and every member of the senate, not as such, but in his function, was also a prince of the people; his regalia were less ostentatious than the king’s, but similar: like the king he wore red shoes, only that the king walked on platforms and his shoes looked better than the senator’s. Which stands to show, that it was possible to dismiss the king and his office from the Roman state, but it was a different proposition to abolish altogether the royal prerogative.

If a king died the elders stepped in and exercised royal power.

But since in principle only one could rule, just one of their number stepped up. The difference between such king of the interregnum (interrex) and the king was the limited period of his tenure, but not the extend of his powers. The term of interregnum for every office holder was limited to five days at most; apparently the senators took turns and the current office holder at the end of his term passed on the office to his successor for another five days according to the order established by lot. Understandably an oath of allegiance was not required from the “interrex.” Apart from this he was in possession of all the powers and duties, not just to run the office but to appoint a new king for life. Only the first in line among the senators was exempt from this right, probably because his inauguration was seen as incomplete since he lacked a predecessor.

So in the final analysis this assembly of the elders was the true source of rule (imperium) and divine sanction (auspicia) in the Roman assembly and provided continuity as the custodians of civil order and the monarchy. When to the Greek observer of a later age the senate looked like an assembly of kings, this was quite to the point: originally it had been exactly that.

Yet it not only perpetuated the idea of the eternal kingdom, the senate was also an essential element of the Roman constitution.

Although the council of the elders was not to interfere with the king’s duties, the deputies he appointed to lead the army, or to preside over a trial, if he was unable to do so himself, came traditionally from the senate, which is the reason why later on still the highest positions preferably fell to senators, and senators also were the preferred choice for jury duty. But neither in military matters nor in judicial affairs was the senate ever asked to intervene as a corporate institution; that’s why in later history the senate never had actual military and judicial authority. Yet the elders’ advice was appreciated by king and people as coming from the true custodians of the current constitution. It therefore was the senate’s prerogative to review every proposal and every decision of the king, and if it seemed to violate current law, to deny it their approval; or, what is the same, to exercise the elders’ veto power in every case where the constitution required a decision by the assembly, such as constitutional amendments, the naturalization of new citizens, the declaration of war against a foreign nation.

However it would be wrong to think that legislation was a shared prerogative by assembly and senate in the same sense as it is for the two houses in a modern constitutional state.

The senate was more of a legislative guardian or supreme court than a legislator and could veto decisions only, if the assembly had overstepped its prerogatives or the decision seemed to violate current commitments towards the deities or foreign powers or infringed on institutional boundaries within the assembly.

It was always of great importance, when, for instance, the Roman king asked the assembly to sanction a declaration of war, that, only after the demand for redressing the grievances had been denied by the foreign antagonist, the Roman ambassador called upon the immortals as his witnesses for the injustice and ended his address with the formula: “we shall take council from our elders, how to regain restitution.” Only with the approval of the elders’ council, after the assembly had made the decision, war was officially declared.

It certainly was not the idea to incessantly overrule and infringe on the assembly’s sovereignty; but just as in the case of vacancy in the highest office the senate became the guarantor of continuity, we also see it here as the refuge for law and order even against the highest authority, the assembly. Probably this led to the age old practice, that before the king presented his proposals to the assembly he first went to the council of the elders and one by one asked for their opinion. As it was the right of the senate to veto a decision after it had passed the assembly, it seemed prudent for the king, first to acquire assurances that there would be no rejection.

So the Roman custom not to make important decisions without asking counsel from one’s peers, had put the senate in a position, where it assisted the assembly as well as the ruler as a kind of state council. It was this customary practice, more than the institutional rights and obligations, that later generated the full power of the senate; the beginning of which however was rather humble and rested in the senator’s right to reply when asked. It may have been customary to ask the senate’s advice at occasions of importance, when it neither touched matters of justice nor the military, such as, apart from motions in the assembly, the introduction of taxes and levies, the citizen’s draft, or the distribution of conquered land. Yet even if customary, a legal obligation to ask the senate did not exist. The king would call upon the council whenever he pleased and ask his questions; to give an unasked opinion was not in a councilors rights, let alone to gather when his appearance was not requested.

Except of course in the case of a vacancy, when the interregnum required to establish in what order to take turns as the interrex.

It is also more than possible that the king was in his rights to call on the counsel of other confidants apart from the senators. The opinion offered therefore is not a directive; the king could ignore it and the senate had no other leverage to bring a point across than practicing the restricted and not always applicable veto. “I have appointed you to give you directions, not to receive yours,” is a word the writer of a later era has put in the mouth of King Romulus, and this is a poignant reminder of the situation.

It was the Roman assembly who was the sovereign, but was never permitted to act on her own, and could offer cooperation only, if established order needed to be amended. The royal prerogative (imperium legitimum), according to Sallust, was without limit insofar as the king’s decree, whether right or wrong, first had to be obeyed, no questions asked; yet was bound by law insofar as it could not contravene established traditions, and without the approval by the sovereign - the people - would be of no legal consequence for the future.

Therefore the most ancient form of the Roman constitution in a manner of speaking was a constitutional monarchy turned upside down. To the extend as in a constitutional monarchy the king is the proprietor and representative of the state’s power and therefore, for instance, amnesties and pardons can only be granted by the king, while the people’s delegates run the administration, so was the Roman nation in its rights comparable to the King of England. As in England the right of granting a pardon is reserved to the crown, accordingly in Rome it was reserved to the assembly of the people, while the actual administration was the prerogative of the head of the community.

The question then, of the relation between the state and its constituents, is leading to the conclusion, that the Roman state was as far away from an association for purposes of mere self-protection as it was different from modern ideas of absolute state power.

The people’s assembly would charge the individual citizen with communal duties and penalize misdemeanor and crimes, but laws that penalized the commoner for actions which did not violate any taboo, even when they came in apparently acceptable forms, had always been envisioned by the Romans as arbitrary acts of tyranny. Even more restricted was the assembly’s power in regard of property and family laws.

Unlike the Spartan police state under Lycurgus’ laws, Rome did not aggrandize the state at the expense of virtually annihilating the private household.

It is one of the most certain as well as most remarkable principles in the earliest Roman constitution, that the state could put the citizen in chains and execute him, but not bereave his son of his land neither even impose arbitrary burdens and taxes. In this and similar matters, even the relations between assembly and citizen had to stay within the law, and this legal boundary was not merely a matter of ideas, but was expressed and practiced in the veto of the senate, who had the constitutional right and obligation to veto every violation of basic rights.

No other nation inside of their own circle was as omnipotent as the Roman’s; yet in no other nation did the blameless citizen live in such absolute and legally guaranteed security from intrusions by his fellow citizens and even the state itself.

Such ruled the Roman assembly itself, a free people who knew how to obey, and who were abhorrent of mysticism and clerical deception, who lived among their peers in absolute equality before the law and with full awareness of their own identity, while at the same time they had the sense and generosity to keep the door wide open for intercourse with foreigners and foreign countries.

by Theodor Mommsen, 1st edition, 1856

© - 9/13/2005 - translated by michael sympson,

6,650 words, all rights reserved