I-A. Examples of the Romans in the time of Kings
of nations and peoples. Yet this can in no way be applied to others, so that a general rule may be established from it. Furthermore, even Romulus did not hold sway over this congress of people, except by their consent. Hence it follows that the authority of all magistrates, however supreme and powerful they are, is dependent upon the public authority of those who have raised them to this degree of dignity, and not contrariwise.
And let no one use the objection that such was indeed the first beginning of magistracies, but subsequently the people completely subjected themselves to the power and arbitrary will of those whom they had received as their supreme magistrates — they surrendered their liberty to them wholly and without any reserve whatever. In the first place, I deny that there is any certain proof of this complete renunciation; indeed to the contrary, I maintain that as long as right and justice have prevailed, no nation has either elected or approved kings without laying down specific conditions.
And if those kings violate these conditions, the result is that those who had the power to confer this authority upon them, have retained no less power to again divest them of that authority. That this may appear more clearly, let us inquire whether this cannot be proved by the uninterrupted usage among the most famous and better-known people throughout the ages.
I-A. Examples of the Romans in the time of Kings Let us begin with the kingdom and subsequently the empire of the Romans, though they were not more ancient than other peoples. Titus Livius (Livy),1 describing the origins of Roman kingship, records that the hundred so-called interreges 2 who were set over the people in turn after the death of Romulus (this first ancestor of the people) did not find favor with the commons. It was then decided by general consent, that henceforth kings should be elected by the vote of the people, and confirmed by the authority of the Senate.3
The same author, when speaking of Tarquin the Proud, the last Roman king, remarks:
"For he had no other claim to royal power apart from force, since he ruled neither at the command of the people nor with the authority of the Senators." 4 And he subsequently relates many deeds which were committed by him that were contrary to the customs of former generations. For according to tradition, Livy remarks, he was the first of the kings who broke the custom handed down by his predecessors, of consulting the Senate about all things. He administered the commonwealth according to his private counsels. On his own, he made and broke off war, peace, treaties ,and alliances, with whomever he willed, without orders from the people and the Senate.5 From these words, it is quite evident that the kings of the Romans were not appointed except on express conditions. And if they failed to fulfill these, the people who summoned them, by way of the different classes of citizens, had no less authority to dismiss them than to appoint them; and this they clearly proved by their conduct towards that very tyrant.
1 see inter alia, Titus Livius, Ab Urbe Condita, book I, xv, 6-8. — also known as Livy (c. 64 BC-17 AD).
2 Inter-regis, or interrex – lit. a ruler "between kings" – WHG 3 Ibid, book I, xvii.
4 Ibid, book I, xlix, 3.
5 Ibid, book I, xlix, 7.
Seneca noted from the books of Cicero, "Concerning the Commonwealth," that an appeal lay from the king to the people. 1 This was acted on in the capital case of Horatius slaying his sister.2 He was condemned by the judges appointed by King Tullus Hostilius,3 but afterwards acquitted by the people. Apart from this, Dionysius also testifies that while
Romulus was taking counsel with his friends about establishing a constitution, he declared that the king was indeed the guardian of the laws, but that meanwhile, the authority to elect magistrates, to pass laws, and to declare war, has been left in the hands of the people.4 This probably served as an archetype to the architects of the French
Monarchy, as we will point out below.
Furthermore, from the history of Collatinus, who was the first consul as colleague of Brutus, it is evident that the people — understood to be not only that plebeian class which today we call the third estate, but all three classes which existed simultaneously in Rome, which are patrician, equestrian, and plebeian — had the same authority as the consuls;5 although the consuls wielded the supreme power in the republic, whenever there was no dictator in office. Livy also testifies of this, in these words:
"The consul fearing that afterwards these same misfortunes, along with the loss of his possessions, might befall him as a private citizen, and with even further disgrace, he laid down the consulship." 6
Yet Collatinus was charged with no crime; but the mere name Tarquinii, to whose family he belonged, was suspect with the people. It is therefore easy to infer from this that the people would have taken advantage of this right all the more, if a consul had been proved guilty of any crime — even though, according to the proviso of the laws, there would have to be a delay to allow the one holding a temporary office, to complete the prescribed period before they could be arraigned.
I admit that afterwards the decemvirs were appointed, from whom no appeal could be made to another magistrate; but since they wielded authority alternately, it was allowable to appeal from the verdict of one to the other — so little did the boundless and unlimited power of anyone ever commend itself to the Roman people. Indeed, at length it even compelled the decemvirs to lay down their office.7
As regards the authority of a dictator, it is true indeed that it was not allowed to appeal from him to another. But this high office was not in use except when the Commonwealth was afflicted (and all but overwhelmed) by some extreme and unavoidable evil; and that was for a very brief period, namely six months. But if ever an appeal was made from the supreme authority to the people — and this is of even greater importance — he agreed to
1 Seneca, Ad Lucilium Epistulae Morales, epist. CVIII, 31; Cicero, De Repub. book II, xviii.
2 Publius Horatius of Rome was a triplet. His sister, Camilla, was betrothed to a triplet in the Curiati family, of Alba
Longa. After a political dispute, the king of Rome, Hostilius, declared war against the Etruscan city of Alba Longa.
Rather than have their armies fight at great cost, the two kings had the Horati triplets fight the Curiati triplets, as representatives of their respective cities. Camilla's lover was killed in the fight, as were Horatius' two brothers. When
Camilla wept over the death of her betrothed, Horatius killed his sister on the spot, for her lack of patriotism. – WHG
3 Titus Livius, Ab Urbe Condita, book I, XXVI, 3 and also 8.
4 Dionysius Halicarnesensis, Antiquitatum Romanorum, book II, 14.
5 Titus Livius, Ab Urbe Condita, book II, II.
6 Ibid, book II, II, 10.
7 Ibid, book III, XXXIII, XXXVI, LIV.