The History of Rome. Book II

This, in short, was the time when the Roman burgess-body in the later sense of the term originated. The plebeians had hitherto been metoeci who were subjected to their share of taxes and burdens, but who were nevertheless in the eye of the law really nothing but tolerated aliens, between whose position and that of foreigners proper it may have seemed hardly necessary to draw a definite line of distinction. They were now enrolled in the lists as burgesses liable to military service, and, although they were still far from being on a footing of legal equality - although the old burgesses still remained exclusively entitled to perform the acts of authority constitutionally pertaining to the council of elders, and exclusively eligible to the civil magistracies and priesthoods, nay even by preference entitled to participate in the usufructs of burgesses, such as the joint use of the public pasture - yet the first and most difficult step towards complete equalization was gained from the time when the plebeians no longer served merely in the common levy, but also voted in the common assembly and in the common council when its opinion was asked, and the head and back of the poorest metoikos were as well protected by the right of appeal as those of the noblest of the old burgesses. One consequence of this amalgamation of the patricians and plebeians in a new corporation of Roman burgesses was the conversion of the old burgesses into a clan-nobility, which was incapable of receiving additions or even of filling up its own ranks, since the nobles no longer possessed the right of passing decrees in common assembly and the adoption of new families into the nobility by decree of the community appeared still less admissible. Under the kings the ranks of the Roman nobility had not been thus closed, and the admission of new clans was no very rare occurrence: now this genuine characteristic of patricianism made its appearance as the sure herald of the speedy loss of its political privileges and of its exclusive estimation in the community. The exclusion of the plebeians from all public magistracies and public priesthoods - while they were admissible to the position of officers and senators - and the maintenance, with perverse obstinacy, of the legal impossibility of marriage between old burgesses and plebeians, further impressed on the patriciate from the outset the stamp of an exclusive and wrongly privileged aristocracy. A second consequence of the new union of the burgesses must have been a more definite regulation of the right of settlement, with reference both to the Latin confederates and to other states. It became necessary - not so much on account of the right of suffrage in the centuries (which indeed belonged only to the freeholder) as on account of the right of appeal, which was intended to be conceded to the plebeian, but not to the foreigner dwelling for a time or even permanently in Rome - to express more precisely the conditions of the acquisition of plebeian rights, and to mark off the enlarged burgess-body in its turn from those who were now the non-burgesses. To thisepoch therefore we may trace back - in the views and feelings of the people - both the invidiousness of the distinction between patricians and plebeians, and the strict and haughty line of demarcation between cives Romani and aliens. But the former civic distinction was in its nature transient, while the latter political one was permanent; and the sense of political unity and rising greatness, which was thus implanted in the heart of the nation, was expansive enough first to undermine and then to carry away with its mighty current those paltry distinctions.

Law and Edict

It was at this period, moreover, that law and edict were separated. The distinction indeed had its foundation in the essential character of the Roman state; for even the regal power in Rome was subordinate, not superior, to the law of the land. But the profound and practical veneration, which the Romans, like every other people of political capacity, cherished for the principle of authority, gave birth to the remarkable rule of Roman constitutional and private law, that every command of the magistrate not based upon a law was at least valid during his tenure of office, although it expired with that tenure. It is evident that in this view, so long as the presidents were nominated for life, the distinction between law and edict must have practically been almost lost sight of, and the legislative activity of the public assembly could acquire no development. On the other hand it obtained a wide field of action after the presidents were changed annually; and the fact was now by no means void of practical importance, that, if the consul in deciding a process committed a legal informality, his successor could institute a fresh trial of the cause.

Civil and Military Authority