Chapter II: Roman Politics and Modern Politics (1)

1. ROME AND THE CHURCH OF ROME

In the brilliant argument which Belloc makes in _Europe and the Faith_ to prove that “the Roman Empire with its institutions and its spirit was the sole origin of European civilization,” he goes so far as to maintain that “the divisions and subdivisions of Europe, the parish, the county, the province, the fixed national traditions with their boundaries, the routes of communication between them ... all these derive entirely from the old Roman Empire, our well-spring.” He finds in the Church of Rome the medium through which this inheritance has been transmitted. With this Catholic essayist the Protestant historian, Harnack, is in substantial agreement when he writes: “The Empire has not perished, but has only undergone a transformation.... The Roman Church is the old Roman Empire consecrated by the Gospel.”

Before we take up for consideration certain points of resemblance and of difference between our political institutions and those of ancient Rome, it is interesting to stop for a moment to ask ourselves in what respects the tradition and the ideals of the Roman state have been perpetuated by the Church of Rome. In the first place the Church is the lineal successor of the Empire in the sense that she saved Europe from chaos when the political ties which bound its several component parts to Rome were severed, and she conserved with all her power through the Middle Ages the Roman elements which escaped being engulfed by the wave of barbarism. More than that, she kept alive the old tradition of world-empire, no longer of the flesh, but of the spirit. Like the old Empire her domain embraced diverse lands and peoples. She resembled and she resembles the Empire now in the fact that she follows law and tradition strictly. She requires implicit obedience from the individual, and the interests of the individual are subordinated to those of the organization. In all these characteristics she is the true spiritual daughter of the Roman Empire. We noticed a moment ago that the realm of the Church, like that of the Emperor, included many different lands. The territorial parallelism between the two systems goes beyond this general point of resemblance.

As Sohm has put it in his _Outlines of Church History_, “the city or _civitas_ was the lowest political unit of the Empire. It became the lowest political unit of the Church. In the constitution of the Church the territory of the city appeared as the episcopal diocese. In the constitution of the Empire the province, with the provincial governor, stood above the _civitas_. The episcopal dioceses were united in like manner under the direction of the metropolitan, the bishop of a provincial capital, forming an ecclesiastical province. In the constitution of the Empire, from the fourth century, several provinces composed an imperial diocese under an imperial governor (vicarius). The imperial diocese also (at least in certain parts of the Eastern Greek Church) formed, after the fourth century, part of the ecclesiastical constitution, as the district of a patriarch, to whom the metropolitans of the imperial dioceses were subordinate. Finally the general union of the churches corresponded to the general union of the Empire, with the imperial Council (the so-called Oecumenical Council) as its legitimate organ.... Thus in its old age the Roman Empire bequeathed its constitution to the young Church.... It was its last great legacy to the future.”

And later Sohm goes on to say: “To this day the diocese of the Catholic bishop is the copy of the Roman _civitas_; the province of the Catholic archbishop, the copy of the Roman imperial province; and the Catholic Church under a Pope declared omnipotent by law, the copy of the ancient Roman Empire, with its Caesars who claimed the world as their possession.” The Church extended its limits in ancient times and still extends them by new conquests, just as the Empire did. The missionary expeditions of Gregory in the sixth century, like the Jesuit enterprises in North and South America in recent times, were carried out in the spirit of Caesar or Trajan, and, after the Christian conquest of England, Gregory spoke as a Roman Emperor might have spoken, when he said “In one faith He linked the boundaries of the East and the West.” The absolute power of the Emperor in the later period is continued in tradition by the infallibility of the Pope, and the remarks of the city prefect, Themistius, to Theodosius the Great, “thou art the living law,” might be made with propriety to the Pope of today. The title “Pontifex Maximus” is common to both rulers, and there is a striking similarity between other ecclesiastical titles and those in the official Roman list of the _Notitia Dignitatum_. Latin is the official language of the Church, as it was of the Empire; the Pope consults the College of Cardinals, as the Emperor consulted the Senate; Canon Law, which has been derived in part from Roman Civil law, is codified as Roman Law was; the Councils seem to follow the parliamentary procedure of the Roman Senate, and the dress of Church officials is reminiscent of Roman times. In other words, what is characteristic of the spirit of the organization and of the externals of the Church of Rome is a direct inheritance from the Empire.

2. THE INDIVIDUAL AND THE STATE

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.

3. ON CONSTITUTIONS

While it cannot be said that the constitutional development of England and of countries whose constitutions are like hers can be traced in all respects to Rome, it may be said with truth that the growth and character of their constitutions bear a strong resemblance to those of Rome, and that writers and political leaders, especially from the time of the French Revolution to our own day, have studied Roman political institutions and have applied the lessons drawn from their study to the political and constitutional questions of the day. In Rome under the Republic the people when they expressed their wish in the assembly were omnipotent, just as the decision of the English people voiced in Parliament is final. As it is in England, so in Rome the latest pronouncement of the popular will rendered null and void any previous enactment or statute in conflict with it. Rome had no formal written constitution any more than England has, but as in England such legal documents as Magna Charta, the Habeas Corpus Act, and the Parliament Act of 1911 are recognised as being more fundamental than the ordinary statute, so in Rome under the Republic the Laws of the Twelve Tables, the enactment that a citizen charged with a capital offence had the right of appealing to the people, and the principle that a _lex_, or action of the popular assembly, took precedence of a decree of the senate, were so embedded in tradition that no measure could be passed in violation of the principles underlying them. Under the Empire, however, we find a document which, so far as it goes, resembles somewhat a written constitution, viz., the “Law of Vespasian conferring the imperium.”[13] In this document we have a comprehensive and systematic recital of the fundamental rights, powers, and privileges of the Emperor. As we have just seen, Rome and England have not defined the functions of the several organs of the state and their relation to one another in a single document, with which all statutes, judicial decisions, and administrative acts must conform, to be valid, as the United States, France, Switzerland and most other modern nations have done. However, the laws, precedents, and customs which direct the public life of England and directed that of Rome in a sense make up their constitutions. Constitutions of this sort, as Bryce maintains in his _Studies in History and Jurisprudence_, are flexible. They bend but do not break under the temporary blasts of popular passion or emotion. They have grown up with the people and are part of the fibre of the people. Going back, as they do, into the past, they have the mystery and the dignity which antiquity gives them. The character of the Roman and of the English constitutions reflect the character of the two peoples and their likeness to each other. They bring out the practical qualities of the two nations, their respect for the past, and their ability to adapt their institutions to new conditions. One more point of similarity between Roman and Anglo-Saxon fundamental laws lies in the fact that both are concrete, and concern themselves little with political doctrines. Both peoples drove straight at specific abuses, without citing any principles of abstract right in justification of the proposed reform.

In one respect Roman government differed fundamentally from that of most modern states. The three functions of government which Montesquieu clearly recognized, the executive, legislative, and judicial, were not assigned to three different classes of officials with as much care as they are today. Of course this lack of differentiation is more noticeable in the early period than it is in the later, but it persists even into the Empire. The Senate, for instance, under the Empire not only legislated, but it nominally had the right to elect the Emperor and the magistrates, and also sat as a court to hear political charges made against members of the senatorial order. Although the threefold division of governmental powers was observed then only in part in the actual organization of the Roman state, it was recognized by Aristotle and by Cicero in their works on politics. The Greco-Roman doctrine on this subject was reaffirmed by Bodin and Locke, as Garner has pointed out in his _Introduction to Political Science_, before it was set forth as a fundamental principle of political organization in the _Spirit of the Laws_. The teachings of Montesquieu on this point became a part of the political philosophy of the French Revolution. In England Blackstone maintained, as Montesquieu had done, that there could be no public liberty when the right of making and enforcing the law was vested in the same man or the same body of men, or when the judicial power was not separated from the legislative and executive. The makers of the Constitution of the United States were profoundly influenced by Montesquieu and Blackstone, and probably no modern constitution exemplifies so well as does the American constitution the threefold division of powers recognized by Cicero. As the Supreme Court has said in one of its decisions: “It is believed to be one of the chief merits of the American system of written constitutional law that all powers entrusted to the government, whether state or national, are divided into three grand departments, the executive, the legislative and the judicial; that the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined.”

If we should try to set down the valuable contributions which the Romans have made to modern political theory, or the achievements of the Romans which we may study with profit, or the political qualities in them which we may imitate to advantage, or the important political principles or institutions which we have inherited from them, we should think of the doctrines of popular sovereignty, of the equality and brotherhood of man, of the practical proof which they have given us of the value of a flexible constitution, of their teachings concerning the theory of the state, and of their introduction of the historical method of studying political institutions. Of all these contributions to modern civilization we have already spoken. We should also think of their devotion to the state, of their regard for law and tradition, of their wise opportunism which made their political thinking practical and concrete, of their development of a marvellous body of civil law, of their careful observance of the principle of local self-government, with its acceptance of local institutions and practices, and of their success in promoting law and order and a feeling of social solidarity, in improving material conditions throughout the world, and in governing and civilizing backward peoples. This is a long list, but in all these respects the political acumen of the Romans was noteworthy, and their achievements either lie at the basis of modern civilization, as we shall see, or may furnish us guidance in our political development. In our discussion of the different branches of the government, and of various fields of political activity, we shall have occasion to take up in detail many of these points which have not yet been mentioned.

4. THE LEGISLATIVE AND EXECUTIVE BRANCHES OF GOVERNMENT

_i._ RESEMBLANCES BETWEEN ANCIENT AND MODERN

It may be convenient at the outset to compare some of the characteristics of the legislative branch of the Roman government with those of modern parliaments. The Roman method of legislating was very similar in its essential features to that followed by the states of this Union which freely use the initiative and referendum.[14] These two political devices come to us of course from Switzerland. One or both of them in their present form may be traced to Rousseau’s opposition to representative government and to his advocacy of the doctrine of popular sovereignty. But traces of the referendum may be found in certain Swiss cities long before Rousseau’s day, and the legislative principle which underlies it may possibly be an inheritance from Roman times, preserved through the Middle Ages in the independent Italian cities. Where the referendum prevails, an elected assembly, the Legislature in our states and the Greater Council in the Swiss cantons, is set over against the whole body of citizens, voting in this country in their home towns, or in Switzerland at some central point. Either legislative organization may initiate legislation, and in practice most proposals originate in the elected body, from which important or controversial matters are referred to the people. Popular action overrides that of the chosen body. The people may not amend a proposal, but must vote “Yes” or “No” upon it. This is an exact description of the relation of the Roman senate to the popular assembly under the Republic. The ancient system had the merits and defects which we see in its modern counterpart. The assembly of the people helped to preserve the rights of the democracy and gave expression to popular aspirations. The aristocratic body, being made up of experienced politicians and administrative officials, was better qualified to deal with technical questions and foreign affairs, and the relative importance of the two legislative organizations varied from one period to another according to the predominance of the one set of questions or the other. Naturally the problems arising out of long-continued wars increased the prestige of the Roman Senate, just as its exclusive right to approve treaties of peace with the Central European States has enhanced the authority of the American Senate at the expense of the Lower House. We noticed above that a few important matters were reserved to the Roman popular assembly. One of these was the declaration of an offensive war. Now in the last two or three years in casting about for some means to avert future wars, it has been proposed to take the right of declaring war from the Congress and to submit the question in each case to the people. This proposal has been made partly in the belief that the people who must bear the brunt of a war will lean toward peace. If we may draw an inference from the attitude of the Roman people, this conclusion is unfounded. Professor Tenney Frank in his _Roman Imperialism_ has shown that the great war with Pyrrhus, the First Punic War, and perhaps the Jugurthine War were forced on Rome by the democracy against the desire and the judgment of the Senate. The Senate knew better than the people what sacrifices of blood and treasure such wars would mean.[15]

In one of the chapters of his book on _Society and Politics in Ancient Rome_ the present writer has attempted a comparison between the Roman Senate and the Senate of the United States.[16] The Roman Senate was, and our Senate is, engaged in a struggle with the executive and with another legislative body more popular than itself for the control of the state. The life terms of Roman senators and the comparatively long terms of our own senators put them largely beyond the reach of popular sentiment, and give them a feeling of security in their positions. The long and honorable tradition of both bodies and their _esprit de corps_ strengthen this sense of security. Roman senators showed for one another the same senatorial courtesy which has become a byword with us. An element of strength in both organizations is the absence, as a rule, of clôture. A measure submitted by an executive may easily be talked to death or amended so as to bear slight resemblance to the original proposal, if there is little or no limitation on debate. But two powers in particular, enjoyed by both bodies, would give any legislative organization an excellent means of controlling public policy and of directing the administration of public affairs. I mean the right to confirm important appointments and to be consulted in the settlement of foreign affairs. What a tremendous influence the Senate of the United States can exert through its right to participate in the management of foreign affairs we have seen illustrated within the last few years, and, as we have noticed in Chapter I, the Roman Senate held the same position of advantage. Just as our senators control in large measure the appointment to important offices, so the Roman Senate rewarded with lucrative posts in the provinces the politicians who supported its policies, and punished leaders like Caesar who opposed it, with provinces “of forests and marshes.” It may be added also that, as has been observed in Chapter I, the Roman Senate was made up of former administrative officials who were familiar from past experience with the questions which came before it, and the Romans did not have the two-party system, which strengthens the hands of a government in Anglo-Saxon countries. It is not strange, therefore, that in course of time the Roman Senate reduced the magistrate to the position of its minister, and that its policy became his policy. As in most modern countries, the members of the government attended the meetings of the legislative body and voted in it. It is interesting to bear the fact in mind that we have felt in the United States the unfortunate results which arise in the making of laws from the lack of close coöperation between the legislative and executive branches of our government, and it has been proposed lately to adopt the Roman practice to the extent of allowing members of the Cabinet to attend meetings of the Congress, without giving them the right to vote.

_ii._ DIFFERENCES BETWEEN ANCIENT AND MODERN

We have been speaking of points of resemblance between the Roman Senate and the Senate of the United States. Some striking points of difference between its procedure and that of modern legislative chambers should be mentioned. A member of our Senate or House of Representatives, if he were summoned to a meeting of the Roman Senate, would be as astonished at the lack of parliamentary machinery, as was the Connecticut Yankee of Mark Twain’s story at the lack of labor-saving devices in the court of King Arthur. He would find no fixed order of business, no quorum ordinarily required, no committees to collect facts and make recommendations, motions not put in writing, and no minutes kept. He would be still more astounded to find three or four mutually exclusive motions before the house at the same time, from which the presiding officer was allowed to make his choice. Yet no legislative body has left behind it such a marvellous record of business-like achievement as the Roman Senate has. This fact may well lead us to ask the question whether the elaborate procedure and the complicated parliamentary rules which our legislative bodies follow are necessary for the expeditious transaction of business. This is not to say that the Roman method could be adopted out of hand today. That was a matter of growth, but it may at least suggest that it would be possible and wise for us to simplify our procedure. Many of the practices peculiar to the Roman Senate may be explained out of its history. Although it is the most famous legislative body known, in theory it was not a legislative body at all. It was in its origin only the Advisory Council, or _consilium_, of the chief magistrate. Its members were merely the experienced old men whose advice the king, and later the consul, sought. When he needed counsel he called them together, and asked their opinions, following naturally the order of age and eminence. In its outward forms the circumstances of its origin were never forgotten. The Senate never met unless the magistrate called it together. The business of the day was laid before it by the presiding officer. Its members were not expected to give their opinions until he asked them, and the presiding officer who was asking advice could naturally pick out the proposal which seemed to him wisest and ask the judgment on it of the other members, and it was the traditional practice to make these proposals orally.

Up to the time of Tiberius Gracchus, near the close of the second century before Christ, Rome was under a parliamentary government, not unlike the government of France or Italy in its essential characteristics. Under the constitution of 1875, for instance, the chief executive of France is brought under the control of the legislative body, just as the Roman Consul was made subject to the Senate. All his acts of every kind, to be valid, must be countersigned by one of his ministers, and it is always within the power of the Chamber of Deputies to overthrow a ministry. In the absence of the two-party system in Rome, and the consequent lack of a compact party organization to support the Government, the Roman system was also like that which is common on the Continent. Of course the Roman system was pure parliamentary government in a higher degree than is the system in vogue in any modern state, because the internal and external policy of Rome was not thought of as the policy of Catulus or Messalla, but as that of the Senate, whereas today, with a certain measure of propriety, we speak of the policy of a Briand or of a Giolitti.

Of course the most marked difference between the Roman Senate and modern legislative bodies lies in the fact that in the composition of the ancient body the representative principle was not recognized. It seems to us extraordinary that when, in her early career, Rome absorbed neighboring Latin towns, and when, at the conclusion of the Social War, she gave Roman citizenship to the cities of Italy, she did not authorize them to elect representatives to the Senate. Instead of doing so she required the people of these places to come to the city of Rome, if they wished to vote. In view of this fact it is often said that the Romans were not familiar with the representative system.[17] This conclusion is, however, incorrect. Traces of the system may be found among the Latins in the earliest times, in the sending of delegates from the several towns to the Latin Games. Twice later in the fifth and third centuries B.C., it was proposed in the Senate to allow Latins to elect a certain number of the members to that body. The constitution which the Italic State adopted in the Social War seems to have been based on the representative idea, and the system which Aemilius Paullus introduced into Macedonia in 168 B.C. was apparently a unicameral, representative government. The Romans then were not ignorant of the principle of representative government, but they did not adopt the system for Italy and the empire because, by doing so, Rome would have lost her exclusive rights, the balance of power would have passed from the Latins, and in course of time provincial members of the Senate would have outnumbered even the Italians. The lack of elected provincial representatives in the Senate was made up in some measure under the empire by the readiness which the emperor showed to listen to the requests and complaints of individuals and cities all over the world, and by the establishment of provincial assemblies, called Κοινά in the East and _concilia_ in the West. When the Romans acquired Greece and Asia they found that neighboring cities in these two regions had already formed religious organizations or political federations. One of these organizations, the assembly of Asia, toward the close of the first century B.C. asked permission to establish the cult of Rome and Augustus. This request was granted, and within the next century provincial assemblies were introduced into most of the provinces of the East and West, primarily to conduct the services of the imperial cult and to celebrate games in honor of the deified emperor. But when the representatives of the several cities of a province met in their annual assembly, it was natural for them to discuss provincial affairs of general interest, and in particular to consider the conduct of the governor and the members of his staff. They never acquired the right to legislate for a province, but they exercised rather freely the right to call the attention of the governor and the emperor to conditions in the province, and in the late empire it seems to be clear from the _Theodosian Code_ that they discussed questions of taxation, the public post, and cases of extortion by imperial officials. The members of these assemblies seem to have been true representatives of their respective cities, and not delegates with a mandate, and in one province, at least, Lycia, they were chosen by a system of proportionate representation. The Councils of the Church were the natural successors of the provincial assemblies. Like the assemblies they were concerned primarily with religious matters. The Provincial Council, meeting under the direction of the Metropolitan, was made up usually of the bishops of the province, but not infrequently we find presbyters, deacons, and laymen present, sent by their respective cities, and from the close of the fifth century, they, as well as the bishops, often vote. Marsiglio of Padua in the thirteenth century went so far as to assert that a General Council should be strictly representative of both clergy and laity, and that a province should have representatives according “to the number and quality” of its inhabitants, and in the following century Occam worked out a complete plan of representation for a Council. It has been suggested by Dunning in his _History of Political Theories_ that Marsiglio may have based his proposal on the system which he found in some of the medieval Italian cities. If that hypothesis is correct, we have a double line of descent in the later period, at least, for the representative idea. It matters little that the political powers of the provincial assemblies were limited, or that the bishops were the controlling element in the Councils of the Church; the essential facts are that representative government was well known to the Romans and that the representative principle survived in the assemblies and in the Church Councils until the Renaissance came to give it new life.

Probably no society has ever invented so many safeguards against Caesarism as the Roman oligarchy did. As we have already noticed, a candidate for a magistracy must have reached a specified age: he must hold the offices in a fixed order, and an interval of time must elapse before he can be re-elected to the highest office. His term was a short one, and during it his actions were always subject to the veto of his colleague. Another check upon him was furnished by the recall. This very new political device is as old as the tribunate of Tiberius Gracchus. It is an application of the doctrine of popular sovereignty in its extreme form, and grew out of earlier attempts to hold magistrates responsible for their conduct in office. The arguments which Gracchus used in support of his proposal to recall his colleague, Octavius, postulate the theory of popular sovereignty and sound surprisingly like the considerations which are urged by the supporters of the recall today. According to Plutarch, Gracchus said: “We esteem him to be legally chosen tribune who is elected only by the majority of votes; and is not therefore the same person much more lawfully degraded, when by the general consent of them all, they agree to depose him?” Perhaps we have not inherited the recall directly from antiquity, but our acceptance of the Roman doctrine of popular sovereignty has led logically to the development of the recall, as well as the initiative, and the referendum.

One of the characteristic features of a Roman magistracy was the right which an incumbent had to veto the action of a colleague; and the tribune had the right, which he freely exercised, to veto the action of any other official. In some respects the Romans used the veto power in a more practical way than we do. Our governors, presidents, and other chief executives may not interpose a veto until a measure has been adopted and laid before them for their signature. Often they are required to disapprove of long, important measures, which they would gladly see adopted, were it not for some slight defect. Under Roman practice a bill could be vetoed before action had been taken upon it, or a tribune would ask for a night’s delay before action should be taken. This arrangement gave proponents of a bill an opportunity to change the objectionable features of it. In recent years various timid excursions have been made into certain fields of political activity, in which Roman magistrates exercised their power freely. We try to influence the morals of people by exercising some supervision over the stage and over the public press; and in time of war the government has fixed the price of certain foods and attempted to provide for their proper distribution. What the censor’s office did in its palmy days to improve the morals of the people and to check extravagance and display has been discussed in the last chapter, and in the aedile’s office the Romans had a permanent Food Administration.

We have already observed that the political quality of the Romans which made for progress and stability at the same time more than did any other, was their ability to adapt old institutions to new conditions. In the practice of assigning a board of experts to an official we have an illustration of the way in which this result was accomplished. Probably no people in antiquity used experts so freely, and perhaps in modern times the practice is not so general as it was in Rome. A magistrate was elected directly by the people each year. He was better aware of the trend of popular sentiment than the average prime minister. He could confidently be expected to advocate progress or change. Attached to his office was a _consilium_, or body of expert advisers, who were familiar with precedent and usage and who would hold fast to the _mos maiorum_. In all departments of Roman public life such boards of advisers are to be found. The king, and later the consul, had the Senate as his _consilium_. The praetor, and, under the empire, the emperor had their _consilia_ to assist them in the adjudication of cases, and in the field of the state religion the chief pontiff was advised by his board of pontiffs. The interaction of the forces which these two elements represented resulted in the gradual reform of old institutions, without too violent a break with law and tradition. We may regard the imperial bureaux which Hadrian brought to a state of perfection for the provinces as an extension of this system of government by experts.

The Roman theory of the relation of the state and the church runs through a cycle. The king was both chief executive and chief priest of the people. When the republic was established, priestly and political functions were dissociated, although all religious matters having a political significance were left to the magistrate. Julius Caesar in his dictatorship united in his person again the functions of the chief magistrate and chief pontiff, and this precedent was followed by all the emperors. The Emperor therefore held somewhat the same place in the state religion as the Czar did in Russia before the Revolution, and as the King does in England. This assumption of religious authority by the political ruler was the first step toward the recognition of the Divine Right of the Emperor; and the practice of paying divine honors to him, which, as we have noticed in Chapter I, was introduced from the Orient, fostered the development of the theory. In European countries the Roman practice of uniting the spiritual and temporal powers has survived in the form of a state religion or in the control of ecclesiastical affairs which most states have assumed in some measure. The United States, in enforcing a complete separation of State and Church, stands almost alone among the Great Powers in not accepting the Roman tradition.