established form of government. If they thought proper to continue it, they named a
‡
magistrate taken from their own body, who chose a king: the senate were to approve of the election, the people to confirm it, and the augurs to declare the approbation of the gods. If any of these three conditions were wanting, they were obliged to proceed to another election.
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The constitution was a mixture of monarchy, aristocracy, and democracy; and such was the harmony of power, that there was no instance of jealousy or dispute in the first reigns. The king commanded the armies, and had the direction of the sacrifices; he had
§
the power of determining∥ civil and criminal causes; he called the senate together, convened the people, laid some affairs before the latter, and regulated the rest with the
*
senate .
The authority of the senate was very great. The kings oftentimes pitched upon senators with whom they sat in judgement; and they never laid any affair before the people till it
†
had been previously debated in that august assembly.
‡
The people had the right of choosing magistrates, of consenting to the new laws, and, with the king’s permission, of making war and peace: but they had not the judicial power. When Tullus Hostilius referred the trial of Horatius to the people, he had his
§§
particular reasons, which may be seen in Dionysius Halicarnasseus
.
The constitution altered under∥∥ Servius Tullus. The senate had no share in his election; he caused himself to be proclaimed by the people; he resigned the power of hearing
¶
civil causes , reserving none to himself but those of a criminal nature; he laid all affairs directly before the people; eased them of the taxes, and imposed the whole burthen on the patricians. Hence, in proportion as he weakened the regal, together with the
*
senatorian, power, he augmented that of the plebeians .
Tarquin would neither be chosen by the senate nor by the people: he considered
Servius Tullus as an usurper, and seized the crown as his hereditary right. He destroyed most of the senators; those who remained he never consulted; nor did he even so much
†
as summon them to assist at his decisions . Thus his power increased: but the odium of that power received a new addition, by usurping also the authority of the people, against whose consent he enacted several laws. The three powers were, by these
means, re-united in his person; but the people, at a critical minute, recollected that they were legislators, and there was an end of Tarquin.
CHAP. XIII.
General Reflections on the State of Rome after the Expulsion of its
Kings.
IT is impossible to be tired of so agreeable a subject as ancient Rome: thus strangers, at present, leave the modern palaces of that celebrated capital to visit the ruins; and thus the eye, after recreating itself with the view of flowery meads, is pleased with the wild prospect of rocks and mountains.
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The patrician families were at all times possessed of great privileges. These distinctions, which were considerable under the kings, became much more important after their expulsion. Hence arose the jealousy of the plebeians, who wanted to reduce them. The contest struck at the constitution without weakening the government; for it was very indifferent of what family were the magistrates, provided the magistracy preserved its authority.
An elective monarchy, like that of Rome, necessarily supposeth a powerful aristocratic body to support it; without which it changes immediately into tyranny or into a popular state. But a popular state has no need of this distinction of families to maintain itself. To this it was owing that the patricians, who were a necessary part of the constitution under the regal government, became a superfluous branch under the consuls; the
people could suppress them without hurting themselves, and change the constitution without corrupting it.
After Servius Tullus had reduced the patricians, it was natural that Rome should fall from the regal hands into those of the people. But the people had no occasion to be afraid of relapsing under a regal power by reducing the patricians.
A state may alter two different ways; either by the amendment, or by the corruption, of the constitution. If it has preserved its principles, and the constitution changes, this is owing to its amendment; if, upon changing the constitution, its principles are lost, this is because it has been corrupted.
The government of Rome, after the expulsion of the kings, should naturally have been a democracy. The people had already the legislative power in their hands; it was their unanimous consent that had expelled the Tarquins; and, if they had not continued steady to those principles, the Tarquins might easily have been restored. To pretend that their design in expelling them was to render themselves slaves to a few families, is quite absurd. The situation, therefore, of things required that Rome should have formed a democracy, and yet this did not happen. There was a necessity that the power of the principal families should be tempered, and that the laws should have a bias to
democracy.
The prosperity of states is frequently greater, in the insensible transition from one constitution to another, than in either of those constitutions. Then it is that all the springs of government are upon the stretch; that the citizens assert their claims; that friendships or enmities are formed amongst the jarring parties; and that there is a noble emulation between those who defend the ancient, and those who are strenuous in promoting the new, constitution.
CHAP. XIV.
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In what Manner the Distribution of the three Powers began to change,
after the Expulsion of the Kings.
THERE were four things that greatly prejudiced the liberty of Rome. The patricians had engrossed to themselves all public employments whatever; an exorbitant power was annexed to the consulate; the people were often insulted; and, in fine, they had scarce any influence at all left in the public suffrages. These four abuses were redressed by the people.
1st. It was regulated, that the plebeians might aspire to some magistracies; and by degrees they were rendered capable of them all, except that of interrex.
‡
2d. the consulate was dissolved into several other magistracies : prætors were created,
*
on whom the power was conferred of trying private causes; quæstors were nominated for determining those of a criminal nature, ædiles were established for the civil administration; treasurers∥ were made for the management of the public money; and, in fine, by the creation of censors, the consuls were divested of that part of the legislative power which regulates the morals of the citizens, and the transient polity of the different bodies of the state. The chief privileges left them were, to preside in the
†
great meetings of the people, to assemble the senate, and to command the armies.
3d. The sacred laws appointed tribunes, who had a power of checking the
encroachments of the patricians, and prevented not only private, but likewise public, injuries.
In fine, the plebeians increased their influence in the general assemblies. The people of Rome were divided in three different manners; by centuries, by curiæ, and by tribes; and, whenever they gave their votes, they were convened one of those three ways.
In the first, the patricians, the leading men, the rich, and the senate, which was very near the same thing, had almost the whole authority; in the second they had less, and less still in the third.
The division into centuries was a division rather of estates and fortunes than of persons.
‡
The whole people were distributed into a hundred and ninety-three centuries , which had each a single vote. The patricians and leading men composed the first ninety-eight centuries; and the other ninety-five consisted of the remainder of the citizens. In this division, therefore, the patricians were masters of the suffrages.
§
In the division into curiæ , the patricians had not the same advantages: some,
however, they had; for it was necessary to consult the augurs, who were under the direction of the patricians; and no proposal could be made there to the people unless it had been previously laid before the senate, and approved of by a senatus consultum.
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But, in the division into tribes, they had nothing to do either with the augurs or with the decrees of the senate; and the patricians were excluded.
Now, the people endeavoured constantly to have those meetings by curiæ which had been customary by centuries; and by tribes, those they used to have before by curiæ: by which means, the direction of public affairs soon devolved from the patricians to the plebeians.
Thus, when the plebeians obtained the power of trying the patricians, a power which
¶
*
commenced in the affair of Coriolanus , they insisted upon assembling by tribes , and
†
not by centuries: and, when the new magistracies of tribunes and ædiles were
established in favour of the people, the latter obtained that they should meet by curiæ,
‡
in order to nominate them; and, after their power was quite settled, they gained so far their point as to assemble by tribes, to proceed to this nomination.
CHAP. XV.
In what Manner Rome, in the flourishing State of that Republic,
suddenly lost its Liberty.
IN the heat of the contests between the patricians and plebeians, the latter insisted upon having fixt laws, to the end that the public judgements should no longer be the effects of capricious will or arbitrary power. The senate, after a great deal of resistance, acquiesced, and decemvirs were nominated to compose those laws. It was thought
proper to grant them an extraordinary power, because they were to give laws to parties whose views and interests it was almost impossible to unite. The nomination of all magistrates was suspended; and the decemvirs were chosen in the comitia sole
administrators of the republic. Thus they found themselves invested with the consular and with the tribunitian power. By one, they had the privilege of assembling the senate; by the other, that of convening the people: but they assembled neither senate nor people. Ten men only of the republic had the whole legislative, the whole executive, and the whole judiciary, power. Rome saw herself enslaved by as cruel a tyranny as that of Tarquin. When Tarquin trampled on the liberty of that city, she was seized with indignation at the power he had usurped; when the decemvirs exercised every act of oppression, she was astonished at the extraordinary power she had granted.
What a strange system of tyranny! A tyranny carried on by men who had obtained the political and military power merely from their knowledge in civil affairs; and who, at that very juncture, stood in need of the courage of those citizens to protect them abroad, who so tamely submitted to domestic oppression.
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The spectacle of Virginia’s death, whom her father immolated to chastity and liberty, put an end to the power of the decemvirs. Every man became free, because every man had been injured: each shewed himself a citizen, because each had the tie of a parent.
The senate and the people resumed a liberty which had been committed to ridiculous tyrants.
No people were so easily moved with public spectacles as the Romans. That of the impurpled body of Lucretia put an end to the regal government. The debtor, who
appeared in the forum covered with wounds, caused an alteration in the republic. The decemvirs owed their expulsion to the tragedy of Virginia. To condemn Manlius, it was necessary to keep the people from seeing the Capitol. Cæsar’s bloody garment flung Rome again into slavery.
CHAP. XVI.
Of the legislative Power in the Roman Republic.
THERE were no rights to contest under the decemvirs; but, upon the restoration of liberty, jealousies revived; and, so long as the patricians had any privileges left, they were sure to be stripped of them by the plebeians.
The mischief would not have been so great had the plebeians been satisfied with this success; but they also injured the patricians as citizens. When the people assembled by curiæ, or centuries, they were composed of senators, patricians, and plebeians. In their disputes the plebeians gained this point,∥ that they alone, without patricians or senate, should enact the laws called plebiscita; and the assemblies, in which they were made,
*
had the name of comitia by tribes. Thus there were cases in which the patricians had
†
no share in the legislative power, but were subject to the legislation of another body of the state. This was the extravagance of liberty. The people, to establish a democracy, acted against the very principles of that government. One would have imagined that so exorbitant a power must have destroyed the authority of the senate. But Rome had admirable institutions. Two of these were especially remarkable; one by which the legislative power of the people was established, and the other by which it was limited.
‡
The censors, and, before them, the consuls, modelled and created, as it were, every five years, the body of the people: they exercised the legislation on the very part that was possessed of the legislative power. “Tiberius Gracchus (says Cicero) caused the free-men to be admitted into the tribes, not by the force of his eloquence, but by a word, by a gesture; which had he not effected, the republic, whose drooping head we are at present scarce able to uphold, would not even exist.”
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On the other hand, the senate had the power of rescuing, as it were, the republic out of the hands of the people, by creating a dictator, before whom the sovereign bowed his
§
head, and the most popular laws were silent.
CHAP. XVII.
Of the executive Power in the same Republic.
JEALOUS as the people were of their legislative power, yet they had no great
uneasiness about the executive. This they left almost intirely to the senate and to the consuls, reserving scarce any thing more to themselves than the right of choosing the magistrates, and of confirming the acts of the senate and of the generals.
Rome, whose passion was to command, whose ambition was to conquer, whose
commencement and progress were one continued usurpation, had constantly affairs of the greatest weight upon her hands; her enemies were ever conspiring against her, or she against her enemies.
As she was obliged to behave on the one hand with heroic courage, and on the other with consummate prudence, it was requisite, of course, that the management of affairs should be committed to the senate. Thus the people disputed every branch of the legislative power with the senate, because they were jealous of their liberty; but they had no disputes about the executive, because they were animated with the love of glory.
†
So great was the share the senate took in the executive power, that, as Polybius informs us, foreign nations imagined that Rome was an aristocracy. The senate
disposed of the public money, and farmed out the revenue; they were arbiters of the affairs of their allies; they determined war or peace, and directed, in this respect, the consuls; they fixed the number of the Roman and of the allied troops, disposed of the provinces and armies to the consuls or prætors, and, upon the expiration of the year of command, had the power of appointing successors; they decreed triumphs, received and sent embassies; they nominated, rewarded, punished, and were judges of kings, declared them allies of the Roman people, or stripped them of that title.
The consuls levied the troops which they were to carry into the field; had the command of the forces by sea and land; disposed of the forces of the allies; were invested with the whole power of the republic in the provinces; gave peace to the vanquished nations, imposed conditions on them, or referred them to the senate.
In the earliest times, when the people had some share in the affairs relating to war or peace, they exercised rather their legislative than their executive power. They scarce http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
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did any thing else but confirm the acts of the kings, and, after their expulsion, those of the consuls or senate. So far were they from being the arbiters of war, that we have instances of its having been often declared, notwithstanding the opposition of the tribunes. But, growing wanton in their prosperity, they increased their executive power.
*
Thus they created the military tribunes, the nomination of whom, till then, had belonged to the generals; and, some time before the first Punic war, they decreed, that
†
only their own body should have the right of declaring war.
CHAP. XVIII.
Of the judiciary Power in the Roman Government.
THE judiciary power was given to the people, to the senate, to the magistrates, and to particular judges. We must see in what manner it was distributed, beginning with their civil affairs.
‡
The consuls had the judiciary power after the expulsion of the kings, as the prætors were judges after the consuls. Servius Tullus had divested himself of the power of determining of civil causes, which was not resumed by the consuls, except in some very
§
rare∥ cases, for that reason called extraordinary . They were satisfied with naming the judges and establishing the several tribunals. By a discourse of Appius Claudius, in
¶
Dionysius Halicarnasseus, it appears, that, so early as the 259th year of Rome, this was looked upon as a settled custom among the Romans; and it is not tracing it very high to refer it to Servius Tullus.
†
Every year, the prætor made a list of such as he chose for the office of judges during his magistracy. A sufficient number was pitched upon for each cause; a custom very near the same as that now practised in England. And what was extremely favourable to
*
liberty was, the prætor’s fixing the judges with the∥ consent of the parties. The great number of exceptions, that can be made in England, amounts pretty near to this very custom.
*
The judges decided only the questions relating to matter of fact: for example, whether a sum of money had been paid or not; whether an act had been committed or not. But,
†
as to questions of law, as these required a certain capacity, they were always carried
§
before the tribunal of the centumvirs .
The kings reserved to themselves the judgement of criminal affairs, and in this were succeeded by the consuls. It was in consequence of this authority that Brutus put his children, and all those who were concerned in the Tarquinian conspiracy, to death. This was an exorbitant power. The consuls, already invested with the military command, http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
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extended the exercise of it even to civil affairs; and their procedures, being stripped of all forms of justice, were rather exertions of violence than legal judgements.
This gave rise to the Valerian law, by which it was made lawful to appeal to the people from every decision of the consuls that endangered the life of a citizen. The consuls had no longer a power of pronouncing sentence in capital cases against a Roman citizen,
¶
without the consent of the people .
We see, in the first conspiracy for the restoration of the Tarquins, that the criminals were tried by Brutus the consul; in the second, the senate and comitia were assembled
‡
to try them .
The laws, distinguished by the name of sacred, allowed the plebeians the privilege of choosing tribunes; from whence was formed a body, whose pretensions at first were immense. It is hard to determine which was greater, the insolence of the plebeians in demanding, or the condescension of the senate in granting. The Valerian law allowed of appeals to the people; that is, to the people composed of senators, patricians, and plebeians. The plebeians made a law that appeals should be brought before their own body. A question was soon after started, whether the plebeians had a right to try a patrician: this was the subject of a dispute to which the impeachment of Coriolanus gave rise, and which ended with that affair. When Coriolanus was accused by the tribunes before the people, he insisted, contrary to the spirit of the Valerian law, that, as he was a patrician, none but the consuls had a power to try him: on the other hand, the plebeians also, contrary to the spirit of that same law, pretended, that none but their body were empowered to be his judges, and accordingly they pronounced
sentence upon him.
This was moderated by the law of the twelve tables; whereby it was ordained, that none
†
but the great assemblies of the people should try a citizen in capital cases. Hence the body of the plebeians, or (which amounts to the very same) the comitia by tribes, had no longer any power of hearing criminal causes, except such as were punished with fines. To inflict a capital punishment, a law was requisite; but, to condemn to a pecuniary mulct, there was occasion only for a plebiscitum.
This regulation of the law of the twelve tables was extremely prudent. It produced an admirable balance between the body of the plebeians and the senate: for, as the full judiciary power of both depended on the greatness of the punishment and the nature of the crime, it was necessary they should both agree.
The Valerian law abolished all the remains of the Roman government any way relative to that of the kings of the heroic times of Greece. The consuls were divested of the power to punish crimes. Though all crimes are public, yet we must distinguish between those which more nearly concern the mutual intercourse of citizens, and those which http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
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more immediately interest the state in the relation it bears to its subjects. The first are called private; the second, public. The latter were tried by the people; and, in regard to the former, they named, by particular commission, a quæstor for the prosecution of each crime. The person chosen by the people was frequently one of the magistrates, sometimes a private man. He was called the quæstor of parricide, and is mentioned in
‡
the law of the twelve tables.
The quæstor nominated the judge of the question, who drew lots for the judges, and regulated the tribunal, in which he presided.∥
Here it is proper to observe what share the senate had in the nomination of the quæstor, that we may see how far the two powers were balanced. Sometimes the
§
senate caused a dictator to be chosen, in order to exercise the office of quæstor ; at other times they ordained that the people should be convened by a tribune, with a view
¶
of proceeding to the nomination of a quæstor : and, in fine, the people frequently appointed a magistrate to make his report to the senate concerning a particular crime, and to desire them to name a quæstor, as may be seen in the judgement upon Lucius
*
†
Scipio in Livy.
‡
In the year of Rome 604, some of these commissions were rendered permanent. All criminal causes were gradually divided into different parts; to which they gave the name of perpetual questions. Different prætors were created, to each of whom some of those questions were assigned. They had a power, conferred upon them for the term of a year, of trying such criminal causes as were any way relative to those questions, and then they were sent to govern their province.
At Carthage the senate of the hundred was composed of judges who enjoyed that
dignity for life∥: But, at Rome, the prætors were annual; and the judges were not even for so long a term, but were nominated for each cause. We have already shewn, in the sixth chapter of this book, how favourable this regulation was to liberty in particular governments.
The judges were chosen from the order of senators, till the time of the Gracchi. Tiberius Gracchus caused a law to pass, that they should be taken from the equestrian order; a change so very considerable, that the tribune boasted of having cut, by one rogation only, the sinews of the senatorian dignity.
It is necessary to observe, that the three powers may be very well distributed in regard to the liberty of the constitution, though not so well in respect to the liberty of the subject. At Rome the people had the greatest share of the legislative, a part of the executive, and part of the judiciary, power; by which means they had so great a weight in the government, as required some other power to balance it. The senate, indeed, had
§
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sufficient to counterbalance the weight of the people. It was necessary that they should partake of the judiciary power; and accordingly they had a share when the judges were chosen from among the senators. But, when the Gracchi deprived the senators of the
¶
judicial power , the sena