Let us proceed now to the people who in the development of law stand pre-eminent among all the nations in all the annals of time, and who have devised the most perfect legal system which the world has ever known. I refer, of course, to the Romans, the conquerors of the world not so much by the power of their arms as by the immortal force of their great jurisprudence.
The story of Rome in its general outlines is no doubt well-known to you. The origin of the great city, like most origins, is enveloped in myth and fable; and the first 360 years of its so-called history is so interwoven with legends, that it is difficult, if not impossible, to ascertain how much is the substratum of truth, and how great the extent of superimposed embellishment. From the statements, however, of its two most noted historians, as well as of other most trustworthy writers, we may gleam sufficient facts for the purpose of our present inquiry. Its own Livy, and the learned Greek Dionysius of Halicarnassus, the worthy fellow-countryman of Herodotus, both of whom flourished in the age of Augustus, and both of whom had access to records and writings now lost to us, have written the history of Rome, with the utmost impartiality and an earnest desire to elucidate the truth. They give us the myth and the legend, as well as the authenticated facts; and the sincerity of both narratives is beyond question. Cicero and Varro also have given us interesting glimpses into the early history of Rome; and their references to Roman institutions and the Roman laws are most valuable to us.
It would appear that about the year B.C. 753 the foundations of Rome were laid by an adventurer, who is known to us by the name of Romulus. The name may have been a fictitious one; but it is his true name to us, since we know of no other. We have called him an adventurer; he was probably such. He is supposed to have come from the town of Alba Langa, on the Alban Hills, some fifteen miles or more to the southeast of Rome; but there is some reason to suspect that he may in fact have been a Greek from some of the Greek cities of the Campanian coast or of Magna Graecia, on the south shore of Italy. Very differently from ourselves and our English cousins, who generally seek to pass off for gentlemen the cut-throats and pirates who swarmed from Normandy with William the Conqueror, when that enterprising ruffian subjugated England, and worse still as a heroic race the bands of blood-thirsty savages, known to us by the arbitrary name of Anglo-Saxons, who came from the shores of North Germany with Hengist and Horsa, to ravage and plunder and conquer Britain, the historians of Rome, and the Romans themselves, did not hesitate to assert that their ancestors, the first founders of their city, were principally fugitives from justice, thieves, robbers, and outlaws from the neighboring regions, who found the atmosphere of their own previous places of residence uncongenial in view of the exigencies of their criminal laws.
In fact, the Romans themselves seem to have rather exaggerated than extenuated the absence of civic virtue in the progenitors of their race. The truth would seem to be that Rome was originally a border settlement on the confines of the territories of three ancient Italian states, Latium, Etruria, and Sabinia; that three of the seven hills on which the subsequent great city was built had been long occupied, centuries perhaps before the reputed era of Romulus, by three little villages, one of Latin, one of Etrurian, and one of Sabine origin; that the adventurer, known in legend by the name of Romulus, combined the three villages into one town or municipality; and that he offered inducements to other adventurers and strenuous men like himself to settle in the place. Many of these newcomers, and no doubt some of the older residents too, were men who had left their previous abiding places for the good of their country, men perhaps with many aliases and little principle, men with a past who preferred to leave that past behind them – just such men, in fact, as by their restless energy and enterprise, in the days now happily past, built up some of our own frontier settlements, and became the founders of thriving cities and even of great commonwealths.
Three great periods are noted in the history of Rome – the monarchical, lasting 244 years, from B.C. 753 to B.C. 509; the republican, lasting 478 years, which was nearly double the monarchical, or from B.C. 509 to B.C. 31; and the imperial, which was for 507 years, a little longer than the republican, from B.C. 31 to A.D. 476. The second of these, the republican period, was that of true Roman greatness and of true Roman development in all that made Rome great. The first was the period of infancy and formation; the third of decay and down fall.
The monarchical period is in history usually filled in with the names of seven kings – six besides Romulus who, singularly enough, were, with some degree of regularity, alternately of Latin, Sabine, and Etrurian race. There were probably many more than seven; but these seven must now stand for all, we refer to them here, because two of them were noted lawgivers, who sought with much industry to fashion and formulate the institutions of the growing city – for city it was, rather than a state, and such it practically remained during the whole monarchical period and for more than a century afterwards. It was merely a municipality, with a small surrounding territory, not much larger than the District of Columbia. The cities of Greece were all of the same character; and the development of Rome was practically not different from that of the Grecian cities, which were all independent republics.
Numa, the second King, and set down in the legends as the immediate successor of Romulus by election, was of Sabine race, and was the first and original legislator of Rome. He was called upon to organize what Romulus had aggregated. There is a pretty story to which the historian Livy has not hesitated to give currency, without vouching for its truth, that Numa derived his inspiration from converse with the nymph Egeria, one of those lovely spirits, creation of classical fancy, not human and yet not wholly divine, and that he often retired to confer with her in her home in some sequestered vale among the Sabine Hills. We are not required to believe the story, notwithstanding that it may be made more credible, if we regard Egeria, who is never elsewhere mentioned in the classical mythology, as being more of human mold than other nymphs of the age of fable. It is pleasant to think that a fascinating woman may have contributed largely to the building of the Roman State; for woman had much to do with its downfall. But history or legend does not tell us what laws the fair Egeria inspired, nor indeed what laws Numa established. We are only told that they were wise, and that Numa acted with consummate wisdom in formulating the institutions of the infant city. He bore the same relation to after ages in Rome that Alfred the Great and Edward the Confessor did to the days of the Normans and Plantagenets in England; and his laws were as much in demand in Roman times as were those of Edward the Confessor under the Norman Kings of England.
The sixth king Servius Tullius was also quite active as a lawgiver, and in shaping the institutions of the city; and the form which he gave to these institutions would seem to ‘have been perpetuated for many centuries. The two Tarquins, the fifth and seventh in the ordinary list of the Kings of Rome, also left a deep impression on the constitution of the Roman state. But to inquire specifically what these several rulers did in the way of legislation, would be a problem rather for the antiquarian than for the student of law, even if we could ascertain it to our satisfaction, which is exceedingly doubtful. For the present it will suffice for us to know that, during the monarchical period of the existence of the Roman state, the peculiar organization of the civil polity of Rome became crystallized into the permanent form which it seems substantially to have retained for many ages.
From the earliest days of Rome we find a distinction of two classes recognized, the patricians and the plebeians. How far this distinction was due to conquest, is not quite apparent. Livy intimates that the plebeians constituted the part of the population which was removed to Rome from some of the towns of Latium that had been conquered by Ancus Martius, one of the warrior kings. At all events, the fact is that the patricians comprised what may be called “the first families,” that is, the early settlers of Rome; and that the subsequent accessions received the name of plebeians. The two classes, it may be well to remember, did not receive their several appellations in consequence of any difference of the social order in the way of birth and education, as might be supposed. On the contrary, our meanings f or the terms patrician and plebian are the result of the Roman classification. In other words, the classification led to the subsequent meanings, not the significance of the words, or the qualifications for which the words stood, to the classification. And this is a very important distinction to be borne in mind in our consideration of Roman institutions and the Roman History.
The Comitia Curiata and the Comitia Centuriata
The patricians were the earlier settlers and their descendants. They claimed for themselves rights and priviliges, which they did not allow to the more recent accessions to the population, the plebeians. Both were free-men; but the patricians constituted themselves into a kind of aristocracy which sought to control the state, and did in fact generally succeed in controlling its policy. King Servius Tullius, the sixth monarch, who has already been mentioned, would seem to have effected a very radical change in the social and governmental organization of the city in his time by enlarging the power of the plebeians and giving them a greater voice than they had previously possessed in the government of the state. But, notwithstanding this, the line between the two classes was always sharply drawn; it was to some extent as well as in some others, the constitution of the Roman state was singularly complex, and indeed to our modern understanding somewhat obscure. There were the Comitia Curiata and the Comitia Centuriata.
The Comitia Curiata was the original Roman Assembly, composed of the first populus or people of Rome, the patricians, who were divided into thirty curiae, or tribes, ten for each of the three original grand divisions. Voting in the Comitia Curiata, or Tribal Assembly, as we may perhaps call it, was by curiae or tribes, as units, each tribe having one vote, and that vote determined by a majority of the votes of the individual members of the curia. The franchise of the Comitia Curiata, as indicated, was restricted to the patricians. The plebeians had no voice in it. The Comitia Centurata, in which the plebeians had a voice, was established, it is said, by King Servius Tullius, early reformer of the Roman state, and who, by reason of his own rather obscure birth and for other considerations, was disposed to protect the plebs or plebeians, and to secure political rights for them. The term Comitia Centuriata has scarcely a corresponding word in English. The literal meaning is the Assembly of the Centuries. For the purpose of its establishment the whole people of Rome, the populus and the plebs, the patricians and the plebeians alike, were divided, on the basis of the amount of property owned by them, into five classes, according to Livy, or into six classes, according to Dionysius of Halicarnassus, which again were subdivided into 193 centuries, or groups of one hundred each, centum meaning one hundred, so called because originally, as it is stated, each group was actually composed of one hundred persons.
Possibly this represented the actual population of Rome at the time the institution was established. Afterwards, of course, although the name was always retained, the membership of the several groups or centuries, so far as number was concerned, necessarily became indefinite. Every Roman citizen, patrician and plebeian alike, was entitled to participate in the Comitia Centuriata. The voting in it was by classes and by centuries – the first class being called first, and the others in their order. Each century had one vote, determined by the majority of its members. A majority of the centuries, being ninety-seven, was required for the passage of any proposed measure. The division into five or six classes, as the case may have been, was important only in the fact that the classes first called to vote might carry a measure without the necessity of calling upon the remaining classes; and the influence of the wealthier classes therefore became predominant. The result was either directly or indirectly that the power of the patricians always remained the dominant factor in the Roman commonwealth.
The Comitia Centuriata became the true General Assembly of the Roman people. It was the body which enacted laws, elected the great officers of the state, the consuls and praetors, and had the final jurisdiction in all criminal cases of a capital nature. The Comitia Curiata had at first a veto power over the determinations of the Comitia Centuriata, which in course of time ceased to have practical importance and became a mere formality; and some ratification on the part of the Senate was required to give effect to the acts of the Comitia Centuriata, which, however, was never refused. The organization both of the Comitia Curiata and of the Comiata Centuriata was retained in Rome throughout the whole period of the Republic; and notwithstanding that all power became vested in the Comitia Centuriata, the other assembly continued to possess many rights and privileges of a sovereign character, especially in matters of a religious nature, down to the end of Roman independence.
There was yet another general assembly of the Roman people, designated as the Comitia Tributa, or the Tribal Assembly or Assembly of the Tribes, as we may translate the words, wherein the people voted by tribes and a majority of the members of any tribe determined the vote of the tribe. But the term tribe here has no reference, it would seem, to the original division of the Roman people into the three tribes, Latin, Etrurian, and Samnite, whereof Romulus formed his combination. This tribal division was a division into wards or districts for the purpose of local administration. In these ward, or district divisions, the plebeians usually had a majority; and by their combination they sometimes found it expedient to enact measures to which were given the name of Plebiscita – Resolutions of the Commons we might call them – which the patricians and the Senate were frequently compelled to accept. The acts of the Senate were called Senatus-Consulta, or Senatorial Decrees, as those of the Comitia Tributa were designated as plebscita. Neither were laws in the strict sense; although directly or indirectly they acquired the force of law. The laws of Rome properly so called, known as leqes or laws, emanated directly from the Comitia Centuriata, and they were binding on the Senate and people alike.