The History of Rome. Book II

5. I. XI. Property

6. I. XI. Punishment of Offenses against Order

7. That the plebeian aediles were formed after the model of the patrician quaestors in the same way as the plebeian tribunes after the model of the patrician consuls, is evident both as regards their criminal functions (in which the distinction between the two magistracies seems to have lain in their tendencies only, not in their powers) and as regards their charge of the archives.  The temple of Ceres was to the aediles what the temple of Saturn was to the quaestors, and from the former they derived their name.  Significant in this respect is the enactment of the law of 305 (Liv. iii. 55), that the decrees of the senate should be delivered over to the aediles there (p. 369), whereas, as is well known, according to the ancient - and subsequently after the settlement of the struggles between the orders, again preponderant - practice those decrees were committed to the quaestors for preservation in the temple of Saturn.

8. I. VI. Levy Districts

9. I. III. Clan-Villages

10. II. II. Secession to the Sacred mount

11. II. II. Intercession

12. II. II. Legislation

CHAPTER III The Equalization of the Orders, and the New Aristocracy

1. The hypothesis that legally the full imperium belonged to the patrician, and only the military imperium to the plebeian, consular tribunes, not only provokes various questions to which there is no answer - as to the course followed, for example, in the event of the election falling, as was by law quite possible, wholly on plebeians - but specially conflicts with the fundamental principle of Roman constitutional law, that the imperium, that is to say, the right of commanding the burgess in name of the community, was functionally indivisible and capable of no other limitation at all than a territorial one. There was a province of urban law and a province of military law, in the latter of which the provocatio and other regulations of urban law were not applicable; there were magistrates, such as the proconsuls, who were empowered to discharge functions simply in the latter; but there were, in the strict sense of law, no magistrates with merely jurisdictional, as there were none with merely military, imperium. The proconsul was in his province, just like the consul, at once commander- in-chief and supreme judge, and was entitled to send to trial actions not only between non-burgesses and soldiers, but also between one burgess and another. Even when, on the institution of the praetorship, the idea rose of apportioning special functions to the magistratus maiores, this division of powers had more of a practical than of a strictly legal force; the praetor urbanus was primarily indeed the supreme judge, but he could also convoke the centuries, at least for certain cases, and could command an army; the consul in the city held primarily the supreme administration and the supreme command, but he too acted as a judge in cases of emancipation and adoption - the functional indivisibility of the supreme magistracy was therefore, even in these instances, very strictly adhered to on both sides. Thus the military as well as jurisdictional authority, or, laying aside these abstractions foreign to the Roman law of this period, the absolute magisterial power, must have virtually pertained to the plebeian consular tribunes as well as to the patrician. But it may well be, as Becker supposes (Handb. ii. 2, 137), that, for the same reasons, for which at a subsequent period there was placed alongside of the consulship common to both orders the praetorship actually reserved for a considerable time for the patricians, even during the consular tribunate the plebeian members of the college were de facto kept aloof from jurisdiction, and so far the consular tribunate prepared the way for the subsequent actual division of jurisdiction between consuls and praetors.

2. I. VI. Political Effects of the Servian Military Organization.

3. The defence, that the aristocracy clung to the exclusion of the plebeians from religious prejudice, mistakes the fundamental character of the Roman religion, and imports into antiquity the modern distinction between church and state. The admittance of a non-burgess to a religious ceremony of the citizens could not indeed but appear sinful to the orthodox Roman; but even the most rigid orthodoxy never doubted that admittance to civic communion, which absolutely and solely depended on the state, involved also full religious equality. All such scruples of conscience, the honesty of which in themselves we do not mean to doubt, were precluded, when once they granted to the plebeians en masse at the right time the patriciate. This only may perhaps be alleged by way of excuse for the nobility, that after it had neglected the right moment for this purpose at the abolition of the monarchy, it was no longer in a position subsequently of itself to retrieve the neglect (II. I. The New Community).

4. Whether this distinction between these 'curule houses' and the other families embraced within the patriciate was ever of serious political importance, cannot with certainty be either affirmed or denied; and as little do we know whether at this epoch there really was any considerable number of patrician families that were not yet curule.

5. II. II. The Valerio-Horatian Laws.

6. I. XII. Foreign Worships.

7. II. I. Senate.

8. II. I. Senate, II. III. Opposition of the Patriciate.