The Ancient Library

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ister justice alone, but was fettered by &. since it is brought forward as a reproach against Tarquinius Superbus, cognitiones capitalium rerum sine consiliis per se solus exercebat (Liv. i. 47) ; but it is not easy to believe in the existence of such a consilium in the times of the early kings, or if it did exist, it must have been a body simply to advise the king, and could not have had the power of controlling him, as he administered justice in virtue of his possessing the imperium. There is moreover no case recorded in which the consilium had any share in the administration of justice. From the decision of the king there seems to have been no appeal (provocatio). This is in­deed denied by Niebuhr, who maintains that in all cases affecting the caput of a Roman citizen, an appeal lay from the king to the people in the comitia of the curiae, and who further argues that this was an ancient right of the patricians, and was extended to the plebs by the Lex Va­leria, enacted at the establishment of the re­public. It is true that the ancient writers refer the institution of the provocatio to the kingly period (Liv. i. 26, viii. 33 ; Cic. pro Mil. 3 ; Val. Max. vi. 3. § 6, viii. 1. § 1 ; Festus, s. v. sororium tic/ilium; Cic. de Rep. ii. 31), but it by no means follows that the provocatio of that early time was the same as the right secured by the Lex Valeria, which was regarded as the great bulwark of the liberty of a Roman citizen. We have indeed the record of only one case of provocatio under the kings, -namely, when the surviving Horatius, who murdered his sister, appealed from the duumviri to the people ; and in this case it must be borne in mind that the appeal was not from the sentence of the king, but from the sentence of the duumviri. 11 appears, even from the narrative of Livy, that the king voluntarily surrendered his right of trying the criminal and passing sentence upon him, in order to avoid the odium of putting to> death the hero who had rendered such signal services to the state, and that he appointed duumviri, from whose decision, an appeal lay to the people, in order that the people might have the responsibility of pro­nouncing his acquittal or condemnation. (Liv. i. 26 ; comp. Dionys. iii. 22.) In addition to which it is expressly stated that the dictatorship was a restoration of the kingly power (Zonar. vii. 13 ; comp. Cic. de Rep. ii. 32) ; and it is certain that the. -great distinction between, the power of the dictator and that of the consuls- consisted in there being no provocatio from the decisions of the former, as there was from the decisions of the latter. Our limits do not allow us to enter further into an examination of this question ; but the reader will find the arguments against Niebnhr's- views stated lit great length in Rubino. (Ibid. p. 430, &c.)

Again, all the magistrates in the kingly period appear to have been appointed by the king and not elected by the curiae. This is expressly staited of the two most important, the Tribimus Celerum, who occupied the second place in the state, and who stood in the same relation to the king as the magister equitum did in later times to the dic­tator (Lydus, de Mag. i. 14), and the Gustos or Praefectus urbi, who was nominated by the king to supply his place when he was absent from the city (Tac. Ann. vi. 11)* We may consequently infer that the Quaestores were in like manner nominated try the king, although the ancient authorities diner on the pointj Tacitus ascribing their appointment



to the king (Tac. Ann. xi. 22) and Junius Grac-chanus to the people. (Dig. 1. tit. 13.) Livy Ex­pressly says (i. 26) that the Duumviri Perdud-lionis were appointed by the king ; and if theso were the same officers as the Quaestores during the kingly period, as many writers maintain, there can be no doubt that the latter were nominated by the king.

Further,.the king was not dependent upon the people for his support; but a large portion of 'the ager publicus belonged to him, which was culti­vated at the expense of the state on his behalf. (Cic. de Rep. v. 2.) He had also the absolute disposal of the booty taken in war and of the con­quered lands. (.Dionys. ii. 28, 62 ; Cic. de Rep. ii. 9,14,18.)

It must not, however, be supposed that the au­thority of the king was absolute. The senate and the assembly of the people must have formed some check upon his power ; though, if the views Ave have been stating are correct, they were far from possessing the extensive privileges which Dionysius (ii. 14) assigns to them. The senate and the comitia of the curiae were not independent bodieo possessing the right of meeting at certain times and discussing questions of state. They could only be called together when the king chose, and further could only determine upon matters which the king submitted to them. The senate was simply the eonsilium of the king,, the members of which were all. appointed by him (Liv. i. 8; Dionys. ii. 12 ; Festusr p. 246,. ed. Miiller • Cic. de Rep. ii. 8), and which only offered their advice to him, which he could follow or reject according to his pleasure. The comitia of the curiae seem to have been rarely assembled, and then probably more to hear the decisions of the king than to ratify his acts ; and it is certain that they had no power of dis­cussing any matter that was brought before them* The only public matter in which the king could not dispense with the co-operation of the senate and the curiae was in declarations of war against foreign nations,, as appears clearly from the decla­ration of war against the Latins in the time of Ancus Marcius, as related by Livy (i. 32), who preserves the ancient formula. There is no trace of the people having had anything to do with the conclusion of treaties of peace ; and Dionysius in this case as in many others has evidently trans­ferred a later custom to the earlier times. The relation in which the senate and the curiae stood to the kings is spoken of more at length under comitia, p. 331, andi senatuo.

The insignia of the king were the fasces with the axes (secures), v> hich twelve lictors carried before him as often as he appeared in public, the imbed) the sella curulis^ and the toga praetexta and picta. .The trabea appears to have been the most ancient official dress, and is assigned especially to Romulus : it was of Latin origin, and is therefore represented by the antiquarian Virgil as worn by the Latin kings. (Plin. H. N. viii. 48, ix. 39 ; Ov« Fast. ii. 501 ; Virg. Aen. vii. 187, xi. 334.) The toga praetexta and picta were bor­rowed, together with the sella curulis, from the Etruscans, and their introduction is variously ascribed to Tullus Hostilius or Tarquinius Priscus. (Cic. de Rep. ii. 17; Macrob.Sat. i. 6 ; Plin. H.N* ix. 39 » Dionys. iii. 62.) Dionysjus (/. c.) also mentions a diadem and a sceptre as insignia of the


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