Let us now sum up the results. Sovereignty, as conceived by the Romans, was inherent in the community of burgesses; but the burgess-body was never entitled to act alone, and was only entitled to co-operate in action, when there was to be a departure from existing rules. By its side stood the assembly of the elders of the community appointed for life, virtually a college of magistrates with regal power, called in the event of a vacancy in the royal office to administer it by means of their own members until it should be once more definitively filled, and entitled to overturn the illegal decrees of the community. The royal power itself was, as Sallust says, at once absolute and limited by the laws (imperium legitimum); absolute, in so far as the king's command, whether righteous or not, must in the first instance be unconditionally obeyed; limited, in so far as a command contravening established usage and not sanctioned by the true sovereign - the people - carried no permanent legal consequences. The oldest constitution of Rome was thus in some measure constitutional monarchy inverted. In that form of government the king is regarded as the possessor and vehicle of the plenary power of the state, and accordingly acts of grace, for example, proceed solely from him, while the administration of the state belongs to the representatives of the people and to the executive responsible to them. In the Roman constitution the community of the people exercised very much the same functions as belong to the king in England: the right of pardon, which in England is a prerogative of the crown, was in Rome a prerogative of the community; while all government was vested in the president of the state.
If, in conclusion, we inquire as to the relation of the state itself to its individual members, we find the Roman polity equally remote from the laxity of a mere defensive combination and from the modern idea of an absolute omnipotence of the state. The community doubtless exercised power over the person of the burgess in the imposition of public burdens, and in the punishment of offences and crimes; but any special law inflicting, or threatening to inflict, punishment on an individual on account of acts not universally recognized as penal always appeared to the Romans, even when there was no flaw in point of form, an arbitrary and unjust proceeding. Far more restricted still was the power of the community in respect of the rights of property and the rights of family which were coincident, rather than merely connected, with these; in Rome the household was not absolutely annihilated and the community aggrandized at its expense, as was the case in the police organization of Lycurgus. It was one of the most undeniable as well as one of the most remarkable principles of the primitive constitution of Rome, that the state might imprison or hang the burgess, but might not take away from him his son or his field or even lay permanent taxation on him. In these and similar things the community itself was restricted from encroaching on the burgess, nor was this restriction merely ideal; it found its expression and its practical application in the constitutional veto of the senate, which was certainly entitled and bound to annul any resolution of the community contravening such an original right. No community was so all-powerful within its own sphere as the Roman; but in no community did the burgess who conducted himself un-blameably live in an equally absolute security from the risk of encroachment on the part either of his fellow-burgesses or of the state itself.
These were the principles on which the community of Rome governed itself - a free people, understanding the duty of obedience, clearly disowning all mystical priestly delusion, absolutely equal in the eye of the law and one with another, bearing the sharply-defined impress of a nationality of their own, while at the same time (as will be afterwards shown) they wisely as well as magnanimously opened their gates wide for intercourse with other lands. This constitution was neither manufactured nor borrowed; it grew up amidst and along with the Roman people. It was based, of course, upon the earlier constitutions - the Italian, the Graeco-Italian, and the Indo-Germanic; but a long succession of phases of political development must have intervened between such constitutions as the poems of Homer and the Germania of Tacitus delineate and the oldest organization of the Roman community. In the acclamation of the Hellenic and in the shield-striking of the Germanic assemblies there was involved an expression of the sovereign power of the community; but a wide interval separated forms such as these from the organized jurisdiction and the regulated declaration of opinion of the Latin assembly of curies. It is possible, moreover, that as the Roman kings certainly borrowed the purple mantle and the ivory sceptre from the Greeks (not from the Etruscans), the twelve lictors also and various other external arrangements were introduced from abroad. But that the development of the Roman constitutional law belonged decidedly to Rome or, at any rate, to Latium, and that the borrowed elements in it are but small and unimportant, is clearly demonstrated by the fact that all its ideas are uniformly expressed by words of Latin coinage. This constitution practically established for all time the fundamental conceptions of the Roman state; for, as long as there existed a Roman community, in spite of changes of form it was always held that the magistrate had absolute command, that the council of elders was the highest authority in the state, and that every exceptional resolution required the sanction of the sovereign or, in other words, of the community of the people.
CHAPTER VI
The Non-Burgesses and the Reformed Constitution
The history of every nation, and of Italy more especially, is a synoikismos on a great scale. Rome, in the earliest form in which we have any knowledge of it, was already triune, and similar incorporations only ceased when the spirit of Roman vigour had wholly died away. Apart from that primitive process of amalgamation of the Ramnes, Titles, and Luceres, of which hardly anything beyond the bare fact is known, the earliest act of incorporation of this sort was that by which the Hill-burgesses became merged in the Palatine Rome. The organization of the two communities, when they were about to be amalgamated, may be conceived to have been substantially similar; and in solving the problem of union they would have to choose between the alternatives of retaining duplicate institutions or of abolishing one set of these and extending the other to the whole united community. They adopted the former course with respect to all sanctuaries and priesthoods. Thenceforth the Roman community had its two guilds of Salii and two of Luperci, and as it had two forms of Mars, it had also two priests for that divinity - the Palatine priest, who afterwards usually took the designation of priest of Mars, and the Colline, who was termed priest of Quirinus. It is likely, although it can no longer be proved, that all the old Latin priesthoods of Rome - the Augurs, Pontifices, Vestals, and Fetials--originated in the same way from a combination of the priestly colleges of the Palatine and Quirinal communities. In the division into local regions the town on the Quirinal hill was added as a fourth region to the three belonging to the Palatine city, viz. the Suburan, Palatine, and suburban (Esquiliae). In the case of the original synoikismos the annexed community was recognized after the union as at least a tribe (part) of the new burgess-body, and thus had in some sense a continued political existence; but this course was not followed in the case of the Hill-Romans or in any of the later processes of annexation. After the union the Roman community continued to be divided as formerly into three tribes, each containing ten wardships (curiae); and the Hill-Romans - whether they were or were not previously distributed into tribes of their own - must have been inserted into the existing tribes and wardships. This insertion was probably so arranged that, while each tribe and wardship received its assigned proportion of the new burgesses, the new burgesses in these divisions were not amalgamated completely with the old; the tribes henceforth presented two ranks: the Tities, Ramnes, and Luceres being respectively subdivided into first and second (priores, posteriores). With this division was connected in all probability that arrangement of the organic institutions of the community in pairs, which meets us everywhere. The three pairs of Sacred Virgins are expressly described as representatives of the three tribes with their first and second ranks; and it may be conjectured that the pair of Lares worshipped in each street had a similar origin. This arrangement is especially apparent in the army: after the union each half-tribe of the tripartite community furnished a hundred horsemen, and the Roman burgess cavalry was thus raised to six "hundreds," and the number of its captains probably from three to six. There is no tradition of any corresponding increase to the infantry; but to this origin we may refer the subsequent custom of calling out the legions regularly two by two, and this doubling of the levy probably led to the rule of having not three, as was perhaps originally the case, but six leaders-of-division to command the legion. It is certain that no corresponding increase of seats in the senate took place: on the contrary, the primitive number of three hundred senators remained the normal number down to the seventh century; with which it is quite compatible that a number of the more prominent men of the newly annexed community may have been received into the senate of the Palatine city. The same course was followed with the magistracies: a single king presided over the united community, and there was no change as to his principal deputies, particularly the warden of the city. It thus appears that the ritual institutions of the Hill-city were continued, and that the doubled burgess-body was required to furnish a military force of double the numerical strength; but in other respects the incorporation of the Quirinal city into the Palatine was really a subordination of the former to the latter. If we have rightly assumed that the contrast between the Palatine old and the Quirinal new burgesses was identical with the contrast between the first and second Tities, Ramnes, and Luceres, it was thus the -gentes-of the Quirinal city that formed the "second" or the "lesser." The distinction, however, was certainly more an honorary than a legal precedence. At the taking of the vote in the senate the senators taken from the old clans were asked before those of the "lesser." In like manner the Colline region ranked as inferior even to the suburban (Esquiline) region of the Palatine city; the priest of the Quirinal Mars as inferior to the priest of the Palatine Mars; the Quirinal Salii and Luperci as inferior to those of the Palatine. It thus appears that the synoikismos, by which the Palatine community incorporated that of the Quirinal, marked an intermediate stage between the earliest synoikismos by which the Tities, Ramnes, and Luceres became blended, and all those that took place afterwards. The annexed community was no longer allowed to form a separate tribe in the new whole, but it was permitted to furnish at least a distinct portion of each tribe; and its ritual institutions were not only allowed to subsist - as was afterwards done in other cases, after the capture of Alba for example - but were elevated into institutions of the united community, a course which was not pursued in any subsequent instance.