Читать книгу Roman Public Life - A. H. J. Greenidge - Страница 31

Yet tradition attributes a definiteness to the Senate which is not consistent with the idea of a purely arbitrary selection. Its numbers at any given time are fixed, and it is to some extent made representative of the whole patrician community—for an increase in the number of full burgesses involved a corresponding increase in the numbers of this body.[236] The number, originally 100,[237] was raised by successive steps to 300 before the close of the monarchy.[238] The two obvious units of representation were the curiae and the clans; but the latter, from their larger numbers, formed a better basis for reflecting the opinion of the whole community, and tradition does seem to have imposed a kind of constitutional necessity on the king of distributing his councillors as evenly as possible amongst the patrician gentes.[239] It was thus that the distinction between the older and the newer clans was perpetuated in the procedure of the Senate;[240] but the clan-influence left its strongest mark by giving a name to the members of the body itself. It was the leading heads of families (patres familias seniores) that the king summoned; and, in asking their advice, he addressed them as “heads of houses” (patres).

The primitive Senate is credited with two standing powers—the patrum auctoritas and the initiation of an interregnum. Neither of these prerogatives was directly contemplated by the constitution, and the Senate never becomes a corporation possessing powers in its own right until the time of the Empire. Tradition mentions the “authority of the fathers” as being necessary for the appointment of a new king; it leaves it to be inferred that it was required for the validity of laws as well, an inference probably not true of the period of the monarchy. As we have already explained, it was a legal right only in so far as it was an extreme instance of the necessity the magistrate was under of taking advice. Perhaps towards the close of the monarchy, with reference to the choice of a successor to the throne, custom had made it a standing prerogative. The interregnum rests on a somewhat different basis; it was a power which religion enjoined should be in the hands of the whole patrician community—usage had delegated the power to the patrician Senate; so here again we have a prerogative which rested wholly on custom.

A privilege only less constant than these was probably the control of foreign policy. The formula of the Fetiales, which is said to have dated from their institution during the monarchy, contains the clause: “But on these matters we will consult the elders at home, how we may obtain our rights.”[241] It was thus the duty of the king to consult the Senate in all matters affecting the international relations of the state. For a declaration of war, perhaps, even this was not sufficient. Tradition believed that, in this matter, reference must be made to the people assembled in the comitia curiata.[242]

On the other hand, the right of making treaties (foedera) with states could not have been limited in this way. For the treaty made in time of peace the Senate, and perhaps the people, were consulted; but this could hardly have been the case with the treaty which closed a war and which was made on the field of battle. In the Republic there survives a shadowy and disputed right of the imperator in the field to make a treaty which shall bind the people. The right was denied, but only on the ground that the general could not take an oath binding on the public conscience. But the king was at once general and high-priest; he could doubtless take this oath even without the assistance of his servants, the Fetiales.

There were other manifestations of the king’s power as general over which the people would have no control. The disposal of the booty taken in war and of the conquered lands was one of these,[243] and the statements which record this right find support in Republican survivals. The control of the spoils of war (at least of the movable portions) belongs to the Republican general, subject to the advice of his council of war and sometimes to subsequent ratification by the Senate. The first condition may have been necessary in the time of the monarchy, but hardly the second.

The council of war was a type of the smaller special consilia, which the king doubtless employed to advise him in different branches of the administration; and such special councils must have been chosen from the great consilium publicum, the Senate. One of the most important of these was that which furnished his assessors in jurisdiction. That it became the custom, in the more important cases judged by the king in person, to employ a consilium of some sort, is stated in the charge brought by tradition against Tarquinius Superbus that he neglected this essential guarantee of even justice.[244] In the secular criminal jurisdiction of the king such a council would doubtless have been taken from the Senate. In the religious jurisdiction, which we have considered, the pontiffs would have been the advising board.

Senators also must have been chiefly chosen as delegates of the king, except, perhaps, those appointed for subordinate command in war;[245] there military fitness would be chiefly looked to.

The chief of these delegates was the prefect of the city (praefectus urbi), an alter ego left behind in the capital by the king when he himself was absent in the field.[246] To him must have been delegated the whole of the executive power, and with it the right and duty of consulting the Senate. It is not probable that the right of questioning the people was or could be delegated.[247] In criminal jurisdiction a distinction was believed to have been made in the cases brought before the king; the more important were tried by himself in person, the less important transmitted to judges chosen from the Senate.[248] This may be the germ of a distinction which is said to have been perfected by Servius Tullius. Crimes affecting the public welfare he tried himself; wrongs done to private individuals he entrusted to others.[249]

This principle of delegation is mentioned only in connexion with criminal jurisdiction. But, whatever its extent, it necessitated the grant by the magistrate to his delegate of a formula or lex, which was the expression of jus. This jus, “that which is right or fitting,” expressed the order of society, as realised through human agency, not directly through the divine will.[250] It is possible that even in early Rome it was treated as a right, a faculty of action (facultas agendi) or liberty enjoyed by one man against another, by individuals against corporations or by corporations against individuals. The differentiation between the rights of the state and the rights of the individual, always marked in procedure long before it is formulated in theory, finds expression in the change which tradition attributes to Servius.[251] But there was never any clear line of demarcation between the two spheres. Much of what we call criminal law was at Rome a matter for civil actions dependent on private initiative, and such actions could in early times be brought only by the head of the family. But in so far as the early Romans had a criminal law, in so far, that is, as an offence against the individual could be regarded as a wrong done to society, this law was a part of the jus publicum.

The king was the sole exponent of this sense of violated right, and the sole interpreter of the jus fixed by custom or by law. Over the penalty he probably had little control. It was enjoined in his ruling and carried out by his lictors; but, in its various forms—death by the arbor infelix or from the Tarpeian rock—it was fixed by the mos majorum. The trial was a personal investigation (quaestio) undertaken by the king, with the assistance of a chosen body of advisers; and he might give judgment himself. But sometimes his judgment was conditioned. He specified the crime under which the accused was to be tried, and the penalty to be inflicted, but left the finding on the facts to his delegates.[252] Two such classes of delegates are attributed to the regal period, the duumviri perduellionis and the quaestores parricidii.[253]

There may have been an appeal from the delegates to the king, but tradition does not credit the king with any power of pardon. Whether the power of pardon resided anywhere depends on our interpretation of the trial of Horatius,[254] which was believed to furnish the archetype of the provocatio. From this story appears the belief, which is often stated by other authorities,[255] that the appeal to the people existed in the regal period, but one modified by the view that the citizens had no standing right of appeal against the king such as that secured against the Republican magistrate by the lex Valeria. The king, Tullus Hostilius, allows the appeal.[256] The early dictatorship was similarly exempt from the necessity of permitting it, and on one occasion the precedent of Horatius was appealed to for the purpose of showing that, as the king had allowed, so the dictator should allow, the appeal.[257] But the dictatorship is a revival of the military side of the monarchy with the military jurisdiction which the king exercises over Horatius. It is quite possible that before the close of the monarchy custom had established different spheres of criminal jurisdiction for the people and the king respectively;[258] in some the people might have had a right to be judges in the last resort, and it is the idea of calling away a case to another court that is suggested by the word provocatio, not the modern idea of pardon.[259] In other spheres the king could judge alone; the provocatio here is an act of grace. If, however, we consider the extent of the military and religious jurisdiction of the king, the competence of the people must have been small;[260] and the provocatio itself may be a growth of the later monarchical period, the result of custom, and of a custom based chiefly on the permit of the king.

Civil jurisdiction is said to have been based on the king’s judgment.[261] How far this royal jurisdiction was personal we cannot say, but under all circumstances the king was the chief source of the jus privatum, in so far as he and his pontiffs alone knew the formularies of action,[262] the most precise verbal accuracy in which was necessary for the successful conduct of a suit. It is probable that in many cases the king gave merely the formulary of action, that is, the ruling in law, and then sent the case before a private judge or arbitrator (judex privatus, arbiter), thus illustrating (although not, perhaps, on the scale recognised during the Republic) the fundamental division of judicial procedure into jus and judicium. This division of jurisdiction is probably primitive and not, as has sometimes been thought, a modification introduced by the later monarchy.[263] Even in Republican times the judex was chosen by consent of the parties.[264] He was an arbitrator between the litigants agreed to by a mutual compact,[265] and an outcome of the notion of self-help so prominent in early Greek and Roman law. But one who knows the forms of action has to stand by and see that the words of these forms are correctly repeated. This depositary of jus is the king or one of his pontiffs. Hence eventually the public official comes to assist at the appointment of the judge. From this it is but a slight step to give the formula of action which settles the law of the case, and to leave it to the judex to decide the question of fact.