No More Learning

Ne 'uzluem ( = malam 111m) ruem ( = ruinam) ' Mamm,
sinus incurrere in plural Satur esto, fen lllars/
. ,
. .
In 1zmen mrrlz/ sta! verbera
Semanu altemi adwmi'e
Nor, Mamerr, fur/ate!
. . Tflpudm, a
}
I.
(hmen I)! cum'tar !
1 Thus Cato the Elder (dc R. R. 160) gives as potent against sprains the formula: Izauat hauat haunt irta piJ-ra rirta damia bodannaurtra, which was presumably quite as obscure to its inventor as it is to us. Of course, along with these there were also formulae of words; eg. it was a remedy for gout, to think, while fasting, on some other person, and thrice nine times to utter the words, touching the earth at the same time and spitting :—“ I think of thee, mend my feet. Let the earth receive the ill, let health with me dwell" (lerra pas-fem teneta, salus hie maneto. Varro dz R. R. i. 2, 27).
2 Each of the first five lines was repeated thrice, and the call at the close five times. Various points in the interpretation are uncertain, particularly as respects the third line. -—The three inscriptions of the clay vase from the Quirinal (p. 277, note) run thus : z'01’: sat deiuosgoi med mitat an’ ted endo gasmir uirgo sied-arted noiri ope toilesiai pakariuoir—a’uenar med faked (=bonus me fail) enmzmam :inom dz: noine (probably=di¢
Panegyrlca and lam poons.
:88 ART 300: r
The Latin of this chant and of kindred fragments of the Salian songs, which were regarded even by the philologues of the Augustan age as the oldest documents of their mother-tongue, is related to the Latin of the Twelve Tables somewhat as the language of the Nibelungen is related to the language of Luther; and we may perhaps compare these venerable litanies, as respects both language and contents, with the Indian Vedas.
Lyrical panegyrics and lampoons belonged to a later epoch. We might infer from the national character of the Italians that satirical songs must have abounded in Latium in ancient times, even if their prevalence had not been attested by the very ancient measures of police directed against them. But the panegyrical chants became of more importance. When a burgess was borne to burial, the bier was followed by a female relative or friend, who, accom panied by a piper, sang his dirge (nem'a). In like manner at banquets boys, who according to the fashion of those days attended their fathers even at feasts out of their own houses, sang by turns songs in praise of their ancestors, sometimes to the pipe, sometimes simply reciting them without accompaniment (assa 110a amen). The custom of men singing in succession at banquets was
We know no further particulars of these ancestral
but it is self-evident that they must have attempted descrip tion and narration and thus have developed, along with and out of the lyrical element, the features of epic poetry.
Other elements of poetry were called into action in the primitive popular carnival, the comic dance or satura 35), which beyond doubt reached back to period
noni) med male stalod. Only individual words admit of being understood with certainty; especially noteworthy that forms, which we have hitherto known only as Umbrian and Oscan, like the adjective pacer and the particle n'nom with the value of at, here probably meet us withal as old-Latin.
The masked farce.
presumably borrowed from the Greeks, and that not till a later age.
lays;
it is
(p.
a
can. xv ART
389
anterior to the separation of the stocks. On such occasions song would never be wanting; and the circumstances under which such pastimes were exhibited, chiefly at public festivals and marriages, as well as the mainly practical shape which they certainly assumed, naturally suggested that several dancers, or sets of dancers, should take up reciprocal parts; so that the singing thus came to be associated with a species of acting, which of course was chiefly of a comical and often of a licentious character. In this way there arose not merely alternative chants, such as afterwards went by the name of Fescennine songs, but also the elements of a popular comedy—which were in this instance planted in a soil admirably adapted for their growth, as an acute sense of the outward and the comic, and a delight in gesticulation and masquerade have ever been leading traits of Italian character.
No remains have been preserved of these inamabula of the Roman epos and drama. That the ancestral lays were traditional is self-evident, and is abundantly demonstrated by the fact that they were regularly recited by children; but even in the time of Cato the Elder they had completely passed into oblivion. The comedies again, if it be allow able so to name them, were at this period and long after wards altogether improvised. Consequently nothing of this popular poetry and popular melody could be handed down but the measure, the accompaniment of music and choral dancing, and perhaps the masks.
Whether what we call metre existed in the earlier times Mm is doubtful; the litany of the Arval Brethren scarcely accommodates itself to an outwardly fixed metrical system,
and presents to us rather the appearance of an animated recitation. 0n the other hand we find in subsequent times
a very ancient rhythm, the so-called Saturnian 1 or Faunian
1 The name probably denotes nothing but "the chant-measure," inasmuch as the sdtura was originally the chant sung at the carnival
VOL. I I9
39o
ART loo: 2
metre, which is foreign to the Greeks, and may be con
to have arisen contemporaneously with the oldest Latin popular poetry. The following poem, belonging, it is true, to a far later age, may give an idea of it :
Quad r! sud dgwdm-aperz afldm Purim Iimlns lm'c vdm'l-vdta M: . taldto
fiumdfaddpoloddazldberdr lublnll: A Donal dandnlvlllrmlei—mdxmmlvmlnto
Sand! 13min! u vJti-cribro
jectured
Iv I I I vvv ‘av
Melody.
That which, misfortune dreading-sharply to’ alfiict him,
An anxious parent vowed here, —when his wish was granted,
A sacred tenth for banquet-gladly give his children
To Hercules a tribute-most of all deserving ;
And now they thee beseech, that-often thou wouldst hear them.
Panegyrics as well as comic songs appear to have been uniformly sung in Satumian metre, of course to the pipe, and presumably in such a way that the canura in particular in each line was strongly marked ; and in alternate singing the second singer probably took up the verse at this point. The Saturnian measure like every other occurring in Roman and Greek antiquity, based on quantity; but of all the antique metres perhaps the least thoroughly
elaborated, for besides many other liberties allows itself the greatest license in omitting the short syllables, and
at the same time the most imperfect in construction, for these iambic and trochaic half-lines opposed to each other were but little fitted to develop rhythmical structure adequate for the purposes of the higher poetry.
The fundamental elements of the national music and
The god of sowing, Saetumu: or Saitumur, afterwards Sdtumur, received his name from the same root his feast, the Saturnalia, was certainly a son of carnival, and possible that the farces were originally exhibited chiefly at this feast. But there are no proofs of a relation between the Satura and the Saturnalia, and may be presumed that the immediate association of the warm: sdtumius with the god Saturn, and the lengthening of the first syllable in connection with that view, belong only to later times.
(p. 35).
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cdnvde'mna.
; it
it is
it is
a
it is
it
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cw. xv ART
:9!
choral dancing in Latium, which must likewise have been established during this period, are buried for us in oblivion; except that the Latin pipe is reported to have been a short and slender instrument, provided with only four holes, and originally, as the name shows, made out of the light thigh bone of some animal.
Lastly, the masks used in after times for the standing Mash. characters of the Latin popular comedy or the Atellana,
as it was called: Maccus the harlequin, Bucco the glutton, Pappus the good papa, and the wise Dossennus-masks
which have been cleverly and strikingly compared to the
two servants, the pantalan and the dottore, in the Italian comedy of Pulcinello-already belonged to the earliest
Latin popular art. That they did so cannot of course be strictly proved; but as the use of masks for the face in Latium in the case of the national drama was of immemorial antiquity, while the Greek drama in Rome did not adopt
them for a century after its first establishment, as, moreover,
those Atellane masks were of decidedly Italian origin, and
as, in fine, the origination as well as the execution of improvised pieces cannot well be conceived apart from
fixed masks assigning once for all to the player his proper position throughout the piece, we must associate fixed
masks with the rudiments of the Roman drama, or rather
regard them as constituting those rudiments themselves.
If our information respecting the earliest indigenous Earliest culture and art of Latium is so scanty, it may easlly be conceived that our knowledge will be sti“ scantier regarding
the earliest impulses imparted in this respect to the Romans
from without. In a certain sense we may include under this head their becoming acquainted with foreign languages, particularly the Greek. To this latter 1? aruage, of course, the Latins generally were Strangers, as was shown by their enactment in respect to the Sibylline oracles 230); but an acquaintance with must hay; hem OW‘ lwm’imml
it
(p.
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ART 300: r
in the case of merchants. The same may be affirmed of the knowledge of reading and writing, closely connected as it was with the knowledge of Greek (p. 273). The culture of the ancient world, however, was not based either on the knowledge of foreign languages or on elementary technical accomplishments. An influence more important than any thus imparted was exercised over the development of Latium by the elements of the fine arts, which were already in very early times received from the Hellenes For it
was the Hellenes alone, and not the Phoenicians or the Etruscans, that in this respect exercised an influence on the Italians. We nowhere find among the latter any stimulus of the fine arts which can be referred to Carthage or Caere, and the Phoenician and Etruscan forms of civilization may be in general perhaps classed with those that are hybrid, and for that reason not further productive. 1 But the influence of Greece did not fail to bear fruit. The Greek seven-stringed lyre, the “strings ” (fides, from o¢i8'q, gut; also barh'tus, ,Bdp/S'wos), was not like the pipe indigenous in Latium, and was always regarded there as an
instrument of foreign origin ; but the early period at which it gained a footing is demonstrated partly by the barbarous mutilation of its Greek name, partly by its being employed
1 The statement that "formerly the Roman boys " were trained in Etruscan culture, as they were in later times in Greek (Liv. ix. 36), is quite irreconcilable with the original character of the Roman training of youth, and it is not easy to see what the Roman boys could have learned in Etruria. Even the most zealous modern partizans of Tages-worship will not maintain that the study of the Etruscan language played such a part in Rome then as the learning of French does now with us; that a non-Etruscan should understand anything of the art of the Etruscan Ilarwpiur was considered, even by those who availed themselves of that art, to be a disgrace or rather an impossibility (Muller, Etr. ii. 4). Perhaps the statement was concocted by the Etruscizing antiquaries of the last age of the republic out of stories of the older annals, aiming at a causal explanation of facts, such as that which makes Mucius Scaevola learn Etruscan when a child for the sake of his conversation with Porsena (Dionysius, v. 28; Plutarch, Pqlimla, 17; comp. Dionyslus, 70), But there was at any rate an epoch when the dominion of Rome over Italy demanded a certain knowledge of the language of the country on the part of Romans of rank.
can. xv ART
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even in ritual. 1 That some of the legendary stores of the Greeks during this period found their way into Latium, is shown by the ready reception of Greek works of sculpture with their representations based so thoroughly upon the poetical treasures of the nation; and the old Latin barbarous conversions of Persephone into Prosepna, Bellerophontes into Melerpanta, Kyklops into Cocles, Laomedon into Alumentus, Ganymedes into Catamitus, Neilos into Melus, Semele into Stimula, enable us to perceive at how remote a period such stories had been heard and repeated by the Latins. Lastly and especially, the Roman chief festival or festival of the city (ludi maximi, Romani) must in all probability have owed, if not its origin, at any rate its later arrangements to Greek influence. It was an extraordinary thanksgiving festival celebrated in honour of the Capitoline Jupiter and the gods dwelling along with him, ordinarily in pursuance of a vow made by
the general before battle, and therefore usually observed on the return home of the burgess-force in autumn. A festal procession proceeded toward the Circus staked off between the Palatine and Aventine, and furnished with an arena and places for spectators ; in front the whole boys of Rome, arranged according to the divisions of the burgess-force, on horseback and on foot; then the champions and the groups of dancers which we have described above, each with their own music ; thereafter the servants of the gods with vessels of frankincense and other sacred utensils; lastly the biers
l The employment of the lyre in ritual is attested by Cicero a’: Ora).
iii. 51, I97; Tun‘. iv. 2, 4; Dionysius, vii. 72; Appian, Pun. 66; and
the inscription in Orelli, 2448, comp. 1803. It was likewise used at the neniae (Varro ap. Nonium, 1/. nenia and praqficae). But playing on the
lyre remained none the less unbecoming (Scipio a). Macrob. Sat. ii. 10,
at 41. ). The prohibition of music in 639 exempted only the "Latin 115. player on the pipe along with the singer," not the player on the lyre, and
the guests at meals sang only to the pipe (Cato in Cic. Tun‘. i. 2, 3 ; iv.
2, 3; Varro ap. Nonium, 1;. arm ‘you; Horace, Carm. iv. 15, 3o). Quintilian, who asserts the reverse (Inst. i. 10, 20), has inaccurately transferred to private banquets what Cicero (dc Orat. iii. 51) states in reference to the feasts of the gods.
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with the images of the gods themselves. The spectacle itself was the counterpart of war as it was waged in primitive times, a contest on chariots, on horseback, and on foot. First there ran the war-chariots, each of which carried in Homeric fashion a charioteer and a combatant; then the combatants who had leaped off; then the horsemen, each of whom appeared after the Roman style of fighting with a horse which he rode and another led by the hand (desultor) ;
lastly, the champions on foot, naked to the girdle round their loins, measured their powers in racing, wrestling, and boxing. In each species of contest there was but one competition, and that between not more than two com petitors. A chaplet rewarded the victor, and the honour in which the simple branch which formed the wreath was held is shown by the law permitting it to be laid on the bier of the victor when he died. The festival thus lasted only one day, and the competitions probably still left sufficient time on that day for the carnival proper, at which the groups of dancers may have displayed their art and above all exhibited their farces ; and doubtless other repre sentations also, such as competitions in juvenile horseman ship, found a place. 1 The honours won in real war also played their part in this festival ; the brave warrior exhibited on this day the equipments of the antagonist whom he had
1 The city festival can have only lasted at first for a single day, for in the sixth century it still consisted of four days of scenic and one day of Circensian sports (Ritschl, Parerga, i. 313) and it is well known that the scenic amusements were only a subsequent addition. That in each kind of contest there was originally only one competition, follows from Livy, xliv. 9; the running of five-and-twenty pairs of chariots in succession on one day was a subsequent innovation (Varro up. Serv. Georg. iii. 18). That only two chariots-and likewise beyond doubt only two horsemen and two wrestlers-strove for the prize, may be inferred from the circum stance, that at all periods in the Roman chariot-races only as many chariots competed as there were so-called factions; and of these there were originally only two, the white and the red. The horsemanship competition of patrician youths which belonged to the Circensian games, the so-called Troia, was, as is well known, revived by Caesar; beyond doubt it was connected with the cavalcade of the boy-militia, which Dionyslus mentions
7a).
cl-ulr. xv ART
295
slain, and was decorated with a chaplet by the grateful community just as was the victor in the competition.
Such was the nature of the Roman festival of victory or city-festival ; and the other public festivities of Rome may be conceived to have been of a similar character, although less ample in point of resources. At the celebration of a public funeral dancers regularly bore a part, and along with them, if there was to be any further exhibition, horse-racers ; in that case the burgesses were specially invited beforehand to the funeral by the public crier.
But this city-festival, so intimately bound up with the manners and exercises of the Romans, coincides in all essentials with the Hellenic national festivals : more especially in the fundamental idea of combining a religious solemnity and a competition in warlike sports; in the selection of the several exercises, which at the Olympic festival, according to Pindar’s testimony, consisted from the first in running, wrestling, boxing, chariot-racing, and throwing the spear and stone; in the nature of the prize of victory, which in Rome as well as in the Greek national festivals was a chaplet, and in the one case as well as in the other was assigned not to the charioteer, but to the owner of the team; and lastly in introducing the feats and rewards of general patriotism in connection with the general national festival. This agreement cannot have been accidental, but
must have been either a remnant of the primitive connection between the peoples, or a result of the earliest international intercourse; and the probabilities preponderate in favour of the latter hypothesis. The city-festival, in the form in which we are acquainted with was not one of the oldest institutions of Rome, for the Circus itself was only laid out in the later regal period 141); and just as the reform of the constitution then took place under Greek influence (p. 123), the city-festival may have been at the same time so far transformed as to combine Greek races with, and
(p.
it,
096
ART soox r
eventually to a certain extent to substitute them for, an older mode of amusement-the “leap” (m'umpus, p. 3 5), and possibly swinging, which was a primitive Italian custom and long continued in use at the festival on the Alban mount. Moreover, while there is some trace of the use of the war-chariot in actual warfare in Hellas, no such trace exists in Latium. Lastly, the Greek term o~ré8wv
(Doric was at a very early period transferred to the Latin
Character of poetry and of education in Latium.
exists even an express statement that the Romans derived their horse and chariot races from the people of Thurii, although, it is true, another account derives them from Etruria. It thus appears that, in addition to the impulses imparted by the Hellenes in music and poetry, the Romans were indebted to them for the fruitful idea of gymnastic competitions.
Thus there not only existed in Latium the same funda- mental elements out of which Hellenic culture and art grew, but Hellenic culture and art themselves exercised a powerful influence over Latium in very early times. Not only did the Latins possess the elements of gymnastic training, in so far as the Roman boy learned like every farmer's son to manage horses and waggon and to handle the hunting-spear, and as in Rome every burgess was at the same time a soldier; but the art of dancing was from the first an object of public care, and a powerful impulse was further given to such culture at an early period by the introduction of the Hellenic games. The lyrical poetry and tragedy of Hellas grew out of songs similar to the festal lays of Rome; the ancestral lay contained the germs of epos, the masked farce the germs of comedy; and in this field also Grecian in fluences were not wanting.
In such circumstances it is the more remarkable that these germs either did not spring up at all, or were soon arrested in their growth. The bodily training of the Latin
mrof‘o‘tov)
language, retaining its signification, as . spatium ,- and there
can. xv ART
:97
youth continued to be solid and substantial, but far removed from the idea of artistic culture for the body, such as was the aim of Hellenic gymnastics. The public games of the Hellenes when introduced into Italy, changed not so much their formal rules as their essential character. While they were intended to be competitions of burgesses and beyond doubt were so at first in Rome, they became contests of professional riders and professional boxers, and, while the proof of free and Hellenic descent formed the first condition for participating in the Greek festal games, those of Rome soon passed into the hands of freedmen and foreigners and even of persons not free at all. Consequently the circle of fellow-competitors became converted into a public of spectators, and the chaplet of the victorious champion, which has been with justice called the badge of Hellas, was afterwards hardly ever mentioned in Latium.
A similar fate befel poetry and her sisters. The Greeks and Germans alone possess a fountain of song that wells up spontaneously ; from the golden vase of the Muses only a few drops have fallen on the green soil of Italy. There was no formation of legend in the strict sense there. The Italian gods were abstractions and remained such; they never became elevated into or, as some may prefer to say, obscured under, a true personal shape. In like manner men, even the greatest and noblest, remained in the view of the Italian without exception mortal, and were not, as in the longing recollection and affectionately cherished tradition of Greece, elevated in the conception of the multitude into god-like heroes. But above all no develop ment of national poetry took place in Latium. It is the deepest and noblest effect of the fine arts and above all
of poetry, that they break down the barriers of civil com munities and create out of tribes a nation and out of the nations a world. As in the present day by means of our cosmopolitan literature the distinctions of civilized nations
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are done away, so Greek poetic art transformed the narrow and egoistic sense of tribal relationship into the conscious ness of Hellenic nationality, and this again into the con sciousness of a common humanity. But in Latium nothing similar occurred. There might be poets in Alba and in Rome, but there arose no Latin epos, nor even-what were still more conceivable-a catechism for the Latin farmer of a kind similar to the “Works and Days ” of Hesiod. The Latin federal festival might well have become a national festival of the fine arts, like the Olympian and Isthmian games of the Greeks. A cycle of legends might well have gathered around the fall of Alba, such as was woven around the conquest of Ilion, and every community and every noble clan of Latium might have discovered in or imported into the story of its own origin. But neither of these results took place, and Italy remained without national poetry or art.
The inference which of necessity follows from these facts, that the development of the fine arts in Latium was
rather shrivelling up than an expanding into bloom, confirmed in manner even now not to be mistaken by
tradition. The beginnings of poetry everywhere, perhaps, belong rather to women than to men the spell of incanta tion and the chant for the dead pertain pre-eminently to the former, and not without reason the spirits of song, the Casmenae or Camenae and the Carmentis of Latium, like the Muses of Hellas, were conceived as feminine. But the time came in Hellas, when the poet relieved the songstress and Apollo took his place at the head of the Muses. In Latium there was no national god of song, and the older Latin language had no designation for the poet. 1 The
Vales probably denoted in the first instance the "leader of the sing ing" (for so the vales of the Salii must be understood) and thereafter in its older usage approximated to the Greek 1rpo¢firrln was a word he longing to religious ritual, and even when subsequently used of the poet, always retained the accessory idea of a divinely-inspired singer-the prlst of the Muses.
it
1
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an til
power of song emerging there was out of all proportion weaker, and was rapidly arrested in its growth. The exercise of the fine arts was there early restricted, partly to women and children, partly to incorporated or unincorpor ated tradesmen. We have already mentioned that funeral chants were sung by women and banquet-lays by boys; the religious litanies also were chiefly executed by children. The musicians formed an incorporated, the dancers and the wailing women (praeficae) unincorporated, trades. While dancing, music, and singing remained constantly in Greece --as they were originally also in Latium—reputable em ployments redounding to the honour of the burgess and of the community to which he belonged, in Latium the better portion of the burgesses drew more and more aloof from these vain arts, and that the more decidedly, in pro portion as art came to be more publicly exhibited and more thoroughly penetrated by the quickening impulses derived from other lands. The use of the native pipe was sanctioned, but the lyre remained despised and while the national amusement of masks was allowed, the foreign amusements of the palaesfra were not only regarded with indifference, but esteemed disgraceful. While the fine arts in Greece became more and more the common property of the Hellenes individually and collectively and thereby be came the means of developing universal culture, they gradually disappeared in Latium from the thoughts and feelings of the people; and, as they degenerated into utterly insignificant handicrafts, the idea of general national culture to be communicated to youth never suggested itself
at all. The education of youth remained entirely confined within the limits of the narrowest domesticity. The boy never left his father’s side, and accompanied him not only to the field with the plough and the sickle, but also to the house of a friend or to the council-hall, when his father was invited as guest or summoned to the senate. This
can. xv ART
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ART 300x r
Dance,
domestic education was well adapted to preserve man wholly for the household and wholly for the state. The permanent intercommunion of life between father and son, and the mutual reverence felt by adolescence for ripened manhood and by the mature man for the innocence of youth, lay at the root of the steadfastness of the domestic and political traditions, of the closeness of the family bond, and in general of the grave earnestness (gravitas) and character of moral worth in Roman life. This mode of educating youth was in truth one of those institutions of homely and almost unconscious wisdom, which are as simple as they are profound. But amidst the admiration which it awakens we may not overlook the fact that it could only be carried out, and was only carried out, by the sacrifice of true individual culture and by a complete renunciation of the equally charming and perilous gifts of the Muses.
Regarding the development of the fine arts among the
music, and Etruscans and Sabellians our knowledge is little better than song
among the none. 1 We can only notice the fact that in Etruria the Sabellians
and dancers (histri, kirm'ones) and the pipe-players (:ubulones)
Etruscans.
early made a trade of their art, probably earlier even than in Rome, and exhibited themselves in public not only at home, but also in Rome for small remuneration and less honour.
It is a circumstance more remarkable that at the Etruscan national festival, in the exhibition of which the whole twelve cities were represented by a federal priest, games were given like those of the Roman city-festival ; we are, however, no longer in a position to answer the
which it suggests, how far the Etruscans were more successful than the Latins in attaining a national form of fine art beyond that of the individual communities. On the other hand a foundation probably was laid in Etruria, even in early times, for that insipid accumulation
question
1 We shall show in due time that the Atcllanae and Fescenninle be longed not to Campanian and Etruscan, but to Latin art.
can. xv ART
301
of learned lumber, particularly of a theological and astro logical nature, by virtue of which afterwards, when amidst the general decay antiquarian dilettantism began to flourish, the Tuscans divided with the Jews, Chaldeans, and Egyptians the honour of being admired as primitive sources of divine wisdom. We know still less, if possible, of Sabellian art; but that of course by no means warrants the inference that it was inferior to that of the neighbouring stocks. On the contrary, it may be conjectured from what we otherwise know of the character of the three chief races of Italy, that in artistic gifts the Samnites approached nearest to the Hellenes and the Etruscans were farthest removed from them; and a sort of confirmation of this hypothesis is fumished by the fact, that the most gifted and most original of the Roman poets, such as Naevius, Ennius, Lucilius, and Horace, belonged to the Samnite lands, whereas Etruria has almost no representatives in Roman literature except the Arretine Maecenas, the most insufferable of all heart withered and affected1 court-poets, and the Volaterran Persius, the true ideal of a conceited and languid, poetry
smitten, youth.
The elements of architecture were, as has been already Earliest
indicated, a primitive common possession of the stocks. Italian or The dwelling-house constitutes the first attempt of structural chitecture. art ; and it was the same among Greeks and Italians.
Built of wood, and covered with a pointed roof of straw or
shingles it formed a square dwelling-chamber, which‘let out the smoke and let in the light by an opening in the roof corresponding with a hole for carrying off the rain in the ground (car/um aea'ium). Under this “ black roof” (atrium) the meals were prepared and consumed; there the house hold gods were worshipped, and the marriage bed and the bier were set out; there the husband received his guests, and the wife sat spinning amid the circle of her maidens. 1 [Literally “ word-crisping," in allusion to the calamirtri Maecznatin]
Earliest
The house had no porch, unless we take as such the un covered space between the house door and the street, which obtained its name vestiéulum, ie. dressing-place, from the circumstance that the Romans were in the habit of going about within doors in their tunics, and only wrapped the toga around them when they went abroad. There was, moreover, no division of apartments except that sleeping and store closets might be provided around the dwelling room ; and still less were there stairs, or stories placed one above another.
Whether, or to what extent, a national Italian architecture arose out of these beginnings can scarcely be determined, for in this field Greek influence, even in the earliest times, had a very powerful effect and almost wholly overgrew such national attempts as possibly had preceded The very oldest Italian architecture with which we are acquainted not much less under the influence of that of Greece than the architecture of the Augustan age. The primitive tombs of Caere and Alsium, and probably the oldest one also of those recently discovered at Praeneste, have been, exactly like the tlmauroi of Orchomenos and Mycenae, roofed over with courses of stone placed one above another, gradually overlapping, and closed by large stone cover. A very ancient building at the city wall of Tusculum was roofed in the same way, and so was originally the well house (tullianum) at the foot of the Capitol, till the top was
down to make room for another building. The gates constructed on the same system are entirely similar in Arpinum and in Mycenae. The tunnel which drains the Alban lake 49) presents the greatest resemblance to that of lake Copais. What are called Cyclopean ring-walls frequently occur in Italy, especially in Etruria, Umbria,
Latium, and Sabina, and decidedly belong in point of design to the most ancient buildings of Italy, although the greater portion of those now extant were probably not
30:
ART no: 1
pulled
(p.
a
is
it.
can. xv ART
303
executed till a much later age, several of them certainly not till the seventh century of the city. They are, just like
those of Greece, sometimes quite roughly formed of large unwrought blocks of rock with smaller stones inserted between them, sometimes disposed in square horizontal courses,1 sometimes composed of polygonal dressed blocks fitting into each other. The selection of one or other of these systems was doubtless ordinarily determined by the material, and accordingly the polygonal masonry does not occur in Rome, where in the most ancient times tufo alone was employed for building. The resemblance in the case of the two former and simpler styles may perhaps be trace able to the similarity of the materials employed and of the object in view in building; but it can hardly be deemed
1 Of this character were the Servian walls. They consisted partly of a strengthening of the hill-slopes by facing them with lining-walls as much as 4 metres thick, partly-in the intervals, above all on the Viminal and Quirinal, where from the Esquiline to the Colline gate there was an absence of natural defence—of an earthen mound, which was finished of on the outside by a similar lining-wall. On these lining-walls rested the breastwork. A trench, according to trustworthy statements of the ancients 30 feet deep and Ioo feet broad, stretched along in front of the wall, for which the earth was taken from this same trench. —The breast work has nowhere been preserved; of the lining-walls extensive remains have recently been brought to light. The blocks of tufo composing them are hewn in longish rectangles, on an average of 60 centimetres (: 2 Roman feet) in height and breadth, while the length varies from 70 centimetres to 3 metres, and they are, without application of mortar. laid together in several rows, alternately with the long and with the narrow side outer most.
The portion of the Servian wall near the Viminal gate, discovered in the year 1862 at the Villa Negroni, rests on a foundation of huge blocks of tufo of 3 to 4 metres in height and breadth, on which was then raised the outer wall from blocks of the same material and of the same size as those elsewhere employed in the wall. The earthen rampart piled up behind appears to have had on the upper surface a breadth extending about 13 metres or fully 40 Roman feet, and the whole wall-defence, in cluding the outer wall of freestone, to have had a breadth of as much as 15 metres or 50 Roman feet. The portions formed of peperino blocks, which are bound with iron clamps, have only been added in connection with subsequent labours of repair. —Essentially similar to the Servian walls are those discovered in the Vigna Nussiner, on the slope of the Palatine towards the side of the Capitol, and at other points of the Palatine, which have been declared by Jordan (Topograplrie, ii. 173), probably ~inh mson. to he mmnants of the citadel-wall of the Palatine Rome.
304
ART looxr
accidental that the artistic polygonal wall-masonry, and the gate with the path leading up to it universally bending to the left and so exposing the unshielded right side of the assailant to the defenders, belong to the Italian fortresses as well as to the Greek. The facts are significant that in that portion of Italy which was not reduced to subjection
by the Hellenes but yet was in lively intercourse with them, the true polygonal masonry was at home, and it is found in Etruria only at Pyrgi and at the towns, not very far distant from of Cosa and Saturnia as the design of the walls of Pyrgi, especially when we take into account the significant name (“towers may just as certainly be ascribed to the Greeks as that of the walls of Tiryns, in them most probably there still stands before our eyes one of the models from which the Italians learned how to build their walls. The temple in fine, which in the period of the empire was called the Tuscanic and was regarded as kind of style co-ordinate with the various Greek temple-structures, not only generally resembled the Greek temple in being an enclosed space (cel/a) usually quadrangular, over which walls and columns raised aloft sloping roof, but was also in details, especially in the column itself and its architectural features, thoroughly dependent on the Greek system. It in accordance with all these facts probable, as credible of itself, that Italian architecture previous to its contact with the Hellenes was confined to wooden huts, abattis, and mounds of earth and stones, and that construction in stone was only adopted
consequence of the example and the better tools of the Greeks. It scarcely to be doubted that the Italians first learned from them the use of iron, and derived from them
the preparation of mortar (ml[e]x, mlecare, from xdkrg), the machine (mackina, lmxawj), the measuring-rod (groma, corruption from 7vu'ipwv, 7wiilsa), and the artificial lattice work (clatbri, xltfi0pov). Accordingly we can scarcely speak
of an architecture peculiarly Italian. Yet in the woodwork
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xv ART
305
of the Italian dwelling-house-alongside of alterations pro duced by Greek influence—various peculiarities may have been retained or even for the first time developed, and these again may have exercised a reflex influence on the building of the Italian temples. The architectural development of the house proceeded in Italy from the Etruscans. The Latin and even the Sabellian still adhered to the hereditary wooden but and to the good old custom of assigning to the god or spirit not a consecrated dwelling, but only a conse crated space, while the Etruscan had already begun artistic ally to transform his dwelling-house, and to erect after the model of the dwelling-house of man a temple also for the god and a sepulchral chamber for the spirit. That the advance to such luxurious structures in Latium first took place under Etruscan influence, is proved by the designation of the oldest style of temple architecture and of the oldest style of house architecture respectively as Tuscanic. 1 As concerns the character of this transference, the Grecian temple probably imitated the general outlines of the tent or dwelling-house ; but it was essentially built of hewn stone and covered with tiles, and the nature of the stone and the baked clay suggested to the Greek the laws of necessity and
The Etruscan on the other hand remained a stranger to the strict Greek distinction between the dwelling of man necessarily erected of wood and the dwelling of the gods necessarily formed of stone. The peculiar character istics of the Tuscan temple—-the outline approaching nearer to a square, the higher gable, the greater breadth of the intervals between the columns, above all, the increased inclination of the roof and the singular projection of the roof-corbels beyond the supporting columns-all arose out of the greater approximation of the temple to the dwelling house, and out of the peculiarities of wooden architecture.
The plastic and delineative arts are more recent than Plantain
1 Ratio Mdllitd: cavum aedium Trm'anicum.
VOL I 20
In Italy
306
ART 300:1
architecture; the house must be built before any attempt is made to decorate gable and walls. It is not probable that these arts really gained a place in Italy during the regal period of Rome; it was only in Etruria, where commerce and piracy early gave rise to a great concentration of
riches, that art or handicraft—if the term he preferred— obtained a footing in the earliest times. Greek art, when it acted on Etruria, was still, as its copy shows, at a very primitive stage, and the Etruscans may have learned from the Greeks the art of working in clay and metal at a period not much later than that at which they borrowed from them the alphabet. The silver coins of Populonia, almost the only works that can be with any precision assigned to this period, give no very high idea of Etruscan artistic skill as it then stood; yet the best of the Etruscan works in bronze, to which the later critics of art assigned so high a place, may have belonged to this primitive age; and the Etruscan terra-cottas also cannot have been altogether despicable, for the oldest works in baked clay placed in the Roman temples-the statue of the Capitoline Jupiter, and the four horse chariot on the roof of his temple—were executed in Veii, and the large ornaments of a similar kind placed on the roofs of temples passed generally among the later Romans under the name of “ Tuscanic works. ”
On the other hand, among the Italians-not among the Sabellian stocks merely, but even among the Latins-native sculpture and design were at this period only coming into existence. The most considerable works of art appear to have been executed abroad. We have just mentioned the statues of clay alleged to have been executed in Veii; and very recent excavations have shown that works in bronze made in Etruria, and furnished with Etruscan inscriptions, circulated in Praeneste at least, if not generally throughout Latium. The statue of Diana in the Romano-Latin federal temple on the Aventine, which was considered the oldest
CHAP- XV ART
307'
statue of a divinity in Rome,1 exactly resembled the Massiliot statue of the Ephesian Artemis, and was perhaps manufac tured in Velia or Massilia. The guilds, which from ancient times existed in Rome, of potters, coppersmiths, and gold smiths 249), are almost the only proofs of the existence of native sculpture and design there; respecting the position of their art no longer possible to gain any clear idea.
If we endeavour to obtain historical results from the Artistic re
lations and
endow
cans and Italians.
archives of the tradition and practice of primitive art,
in the first place manifest that Italian art, like the Italian ments of measures and Italian writing, developed itself not under the Etrus
Phoenician, but exclusively under Hellenic influence. There not single one of the aspects of Italian art which has not found its definite model in the art of ancient Greece;
and, so far, the legend fully warranted which traces the manufacture of painted clay figures, beyond doubt the most ancient form of art in Italy, to the three Greek artists, the “moulder,” “fitter,” and “draughtsman,” Eucheir, Diopos, and Eugrammos, although more than doubtful whether this art came directly from Corinth or came directly to Tarquinii. There as little trace of any immediate imi tation of oriental models as there of an independently developed form of art. The Etruscan lapidaries adhered to the form of the beetle or scaraéaeus, which was originally Egyptian but scaraéaei were also used as models for carv ing in Greece in very early times (ag. such beetle-stone, with very ancient Greek inscription, has been found in Aegina), and therefore they may very well have come to the Etruscans through the Greeks. The Italians may have bought from the Phoenician; they learned only from the Greek.
When Varro (up. Augustin. De Ci'u. Dzi, iv. 31 comp. Plutarch Num. affirms that the Romans for more than one hundred and seventy years worshipped the gods without images, he evidently thinking of this primitive piece of carving, which, according to the conventional chronology, was dedicated between 176 and 219, and, beyond doubt, was the first statue of the gods, the consecration of which was mentioned in the authori~ ties which Varro had before him. Comp. above, p. 280.
578, 685.
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To the further question, from what Greek stock the Etruscans in the first instance received their art-models, a categorical answer cannot be given; yet relations of a re markable kind subsist between the Etruscan and the oldest Attic art. The three forms of art, which were practised in Etruria at least in after times very extensively, but in Greece only to an extent very limited, tomb-painting, mirror designing, and graving on stone, have been hitherto met with on Grecian soil only in Athens and Aegina. The Tuscan temple does not correspond exactly either to the Doric or to the Ionic; but in the more important points of distinction, in the course of columns carried round the calla, as well as in the placing of a separate pedestal under each particular column, the Etruscan style follows the more recent Ionic; and it is this same Iono-Attic style of building still pervaded
by a Doric element, which in its general design stands nearest of all the Greek styles to the Tuscan. In the case of Latium there is an almost total absence of any certain traces of intercourse bearing on the history of art. If it was -as is indeed almost self-evident-the general relations of traflic and intercourse that determined also the introduction of models in art, it may be assumed with certainty that the Campanian and Sicilian Hellenes were the instructors of Latium in art, as in the alphabet; and the analogy between the Aventine Diana and the Ephesian Artemis is at least
not inconsistent with such an hypothesis. Of course the older Etruscan art also served as a model for Latium. As to the Sabellian tribes, if Greek architectural and plastic art reached them at all, it must, like the Greek alphabet, have come to them only through the medium of the more western Italian stocks.
in conclusion, we are to form judgment
the artistic endowments of the different Italian nations, we already at this stage perceive—what becomes indeed far more obvious in the later stages of the history of art-that
respecting
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‘309
while the Etruscans attained to the practice of art at an earlier period and produced more massive and rich workman ship, their works are inferior to those of the Latins and Sabellians in appropriateness and utility no less than in spirit and beauty. This certainly is apparent, in the case of our present epoch, only in architecture. The polygonal wall masonry, as appropriate to its object as it was beautiful, was frequent in Latium and in the inland country behind it; while in Etruria it was rare, and not even the walls of Caere are constructed of polygonal blocks. Even in the religious prominence-remarkable also as respects the history of art— assigned to the arch 213) and to the bridge 219) in
Latium, we may be allowed to perceive, as were, an antici pation of the future aqueducts and consular highways of Rome. On the other hand, the Etruscans repeated, and at the same time corrupted, the ornamental architecture of the Greeks: for while they transferred the laws established for building in stone to architecture in wood, they displayed no thorough skill of adaptation, and the lowness of their roof and the wide intervals between their columns gave to their temples, to use the language of an ancient architect, “heavy, mean, straggling, and clumsy appearance. ” The Latins found in the rich stores of Greek art but very little that was congenial to their thoroughly realistic tastes; but what they did adopt they appropriated truly and heartily as their own, and in the development of the polygonal wall architecture perhaps excelled their instructors. Etruscan art
remarkable evidence of accomplishments mechanically acquired and mechanically retained, but as little as the Chinese, an evidence even of genial receptivity. As scholars have long since desisted from the attempt to derive Greek art from that of the Etruscans, so they must, with whatever reluctance, make up their minds to transfer the Etruscans from the first to the lowest place in the history of Italian art.
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FROM THE ABOLITION OF THE MONARCHY IN ROME
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THE UNION OF ITALY
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POLYBIUS.
CHAPTER I
CHANGE OF THE CONSTITUTION—LIMITATXON OF TH] POWER OF THE MAGISTRATE
THE strict conception of the unity and omnipotence of the state in all matters pertaining to which was the central principle of the Italian constitutions, placed in the hands of the single president nominated for life formidable power, which was felt doubtless by the enemies of the land, but was not less heavily felt by its citizens. Abuse and oppression could not fail to ensue, and, as necessary consequence, efforts were made to lessen that power. It was, however, the grand distinction of the endeavours after reform and the revolutions in Rome, that there was no attempt either to impose limitations on the community as such or even to deprive of corresponding organs of expression—that there never was any endeavour to assert the so-called natural rights of the individual in contra distinction to the community—that, on the contrary, the attack was wholly directed against the form in which the community was represented. From the times of the Tarquins down to those of the Gracchi the cry of the party of progress in Rome was not for limitation of the power of
the state, but for limitation of the power of the magistrates nor amidst that cry was the truth ever forgotten, that the people ought not to govern, but to be governed.
This struggle was carried on within the burgess-body.
Political
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Side by side with it another movement developed itself the cry of the non-burgesses for equality of political privileges. Under this head are included the agitations of the plebeians, the Latins, the Italians, and the freedmen, all of whom-whether they may have borne the name of burgesses, as did the plebeians and the freedmen, or not, as was the case with the Latins and Italians-were destitute of, and desired, political equality.
A third distinction was one of a still more general nature; the distinction between the wealthy and the poor, especially such as had been dispossessed or were en dangered in possession. The legal and political relations of Rome led to the rise of a numerous class of farmers— partly small proprietors who were dependent on the mercy of the capitalist, partly small temporary lessees who were dependent on the mercy of the landlord—and in many instances deprived individuals as well as whole communities of the lands which they held, without affecting their personal freedom. By these means the agricultural prole tariate became at an early period so powerful as to have a material influence on the destinies of the community. The urban proletariate did not acquire political importance till a much later epoch.
On these distinctions hinged the internal history of Rome, and, as may be presumed, not less the history totally lost to us—of the other Italian communities. The political movement within the fully-privileged burgess-body, the warfare between the excluded and excluding classes, and the social conflicts between the possessors and the non-possessors of land-variously as they crossed and interlaced, and singular as were the alliances they often produced-were nevertheless essentially and fundamentally distinct.
As the Servian reform, which placed the meloiko: on a rooting of equality in a military point of view with the
can. I CHANGE OF THE CONSTITUTION
315
burgess, appears to have originated from considerations of Abolition an administrative nature rather than from any political zigzag; party-tendency, we may assume that the first of the move- of 111? com ments which led to internal crises and changes of the mummy‘ constitution was that which sought to limit the magistracy.
The earliest achievement of this, the most ancient opposition in Rome, consisted in the abolition of the life-tenure of the presidency of the community; in other words, in the abolition of the monarchy. How necessarily this was the result of the natural development of things, is most strikingly demonstrated by the fact, that the same change of constitution took place in an analogous manner through the whole circuit of the Italo-Grecian world. Not only in Rome, but likewise among the other Latins as well as among the Sabellians, Etruscans, and Apulians-and generally, in all the Italian communities, just as in those of Greece-we find the rulers for life of an earlier epoch superseded in after times by annual magistrates. In the case of the Lucanian canton there is evidence that it had a democratic government in time of peace, and it was only in the event of war that the magistrates appointed a king, that an oflicial similar to the Roman dictator. The Sabellian civic communities, such as those of Capua and Pompeii, in like manner were in later times governed by "community-manager” (mea’ix tutims) changed from year to year, and we may assume that similar institutions existed among the other national and civic communities of Italy. In this light the reasons which led to the substitution of consuls for kings in Rome need no explanation. The organism of the ancient Greek and Italian polity developed of itself by sort of natural necessity the limitation of the life-presidency to a shortened, and for the most part an annual, term. Simple, however, as was the cause of this change, might be brought about in various ways; a resolution might be adopted on the death of one life-ruler
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Expulsion of the Tarqulns from Rome.
not to elect another-a course which the Roman senate is said to have attempted after the death of Romulus; or the ruler might voluntarily abdicate, as is alleged to have been the intention of king Servius Tullius ; or the people might rise in rebellion against a tyrannical ruler, and expel him.
It was in this latter way that the monarchy was termin ated in Rome. For however much the history of the ex pulsion of the last Tarquinius, “the proud,” may have been interwoven with anecdotes and spun out into a romance, it is not in its leading outlines to be called in question. Tradition credibly enough indicates as the causes of the revolt, that the king neglected to consult the senate and to complete its numbers; that he pronounced sentences of capital punishment and confiscation without
advising with his counsellors ; that be accumulated immense stores of grain in his granaries, and exacted from the burgesses military labour and task-work beyond what was due. The exasperation of the people is attested by the formal vow which they made man by man for themselves and for their posterity that thenceforth they would never tolerate a king ; by the blind hatred with which the name of king was ever afterwards regarded in Rome ; and above all by the enactment that the “ king for offering sacrifice” (rex sazrorum or samficulus)—whom they considered it their duty to create that the gods might not miss their accustomed mediator-should be disqualified from holding any further oflice, so that this man became the foremost indeed, but also the most powerless in the Roman common wealth. Along with the last king all the members of his clan were banished-a proof how close at that time gentile ties still were. The Tarquinii thereupon transferred them selves to Caere, perhaps their ancient home 159), where their family tomb has recently been discovered. In the room of the one president holding ot‘n'ce for life two annual
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rulers were now placed at the head of the Roman com
munity.
This is all that can be looked upon as historically
certain in reference to this important event. 1 It is con ceivable that in a great community with extensive dominion like the Roman the royal power, particularly if it had been in the same family for several generations, would be more capable of resistance, and the struggle would thus be keener, than in the smaller states; but there is no certain indication of any interference by foreign states in the struggle. The great war with Etruria—which possibly, moreover, has been placed so close upon the expulsion of the Tarquins only in consequence of chronological confusion in the Roman annals --cannot be regarded as an intervention of Etruria in favour of a countryman who had been injured in Rome, for the very suflicient reason that the Etruscans notwithstanding their complete victory neither restored the Roman monarchy, nor even brought back the Tarquinian family.
If we are left in ignorance of the historical connections Powers of this important event, we are fortunately in possession of of the
consuls. clearer light as to the nature of the change which was made
in the constitution. The royal power was by no means abolished, as is shown by the very fact that, when a vacancy occurred afterwards as before, an “interim king” (r'nz‘errex) was nominated. The. one life-king was simply replaced by
1 The well-known fable for the most part refutes itself. To a consider able extent it has been concocted for the explanation of surnames (Brutur, Poplimla, Scan/01a). But even its apparently historical ingredients are found on closer examination to have been invented. Of this character is the statement that Brutus was captain of the horsemen (tribunus celerum) and in that capacity proposed the decree of the people as to the banishment of the Tarquins ; for, according to the Roman constitution. it is quite im
ible that a. mere oflicer should have had the right to convoke the curies. The whole of this statement has evidently been invented with the view of furnishing a legal basis for the Roman republic ; and very ill invented it is, for in its case the tribunus celzrum is confounded with the entirely different magirter equitum (p. 9of. ), and then the right of convoking the centuries which pertained to the latter by virtue of his praetorian rank is made to apply to the assembly of the curies.
Collegiate arrange ment.
two year-kings, who called themselves generals (praetoras), or judges (iudrkes), or merely colleagues (:omules). 1 The principles of collegiate tenure and of annual duration are those which distinguish the republic from the monarchy, and they first meet us here.
The collegiate principle, from which the third and subsequently most current name of the annual kings was derived, assumed in their case an altogether peculiar form The supreme power was not entrusted to the two magistrates
but each consul possessed and exercised it for himself as fully and wholly as it had been possessed and exercised by the king. This was carried so far that, instead of one of the two colleagues undertaking perhaps the administration of justice, and the other the command of the army, they both administered justice simultaneously in the city just as they both set out together to the army ; in case of collision the matter was decided by a rotation measured by months or days. A certain partition of functions withal, at least in the supreme military command, might doubtless take place from the outset-the one consul for example taking the field against the Aequi, and the other against the Volsci-but it had in no wise binding force, and each of the colleagues was legally at liberty to interfere at
any time in the province of the other. When, therefore, supreme power confronted supreme power and the one colleague forbade what the other enjoined, the consular commands neutralized each other. This peculiarly Latin, if not peculiarly Roman, institution of co-ordinate supreme authorities-which in the Roman commonwealth on the whole approved itself as practicable, but to which it will be difiicult to find a parallel in any other considerable state— manifestly sprang out of the endeavour to retain the regal power in legally undiminished fulness. They were thus
1 Conrules are those who "leap or dance together," as pranul is one who “leaps before," exul, one who "leaps out" (6 éxrea'a'w), imula, a
"leap into," primarily applied to a mass of rock fallen into the sea.
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CHANGE OF THE CONSTITUTION BOOK 11
conjointly,
Cum’. 1 CHANGE OF THE CONSTITUTION
319
led not to break up the royal ofice into parts or to transfer it from an individual to a college, but simply to double it and thereby, if necessary, to neutralize it through its own action.
As regards the termination of their tenure of office, the earlier interregnum of five days furnished a legal precedent. 666% The ordinary presidents of the community were bound not
to remain in oflice longer than a year reckoned from the
day of their entering on their functions ; 1 and they ceased dejure to be magistrates upon the expiry of the year, just
as the interrex on the expiry of the five days. Through
this set termination of the supreme office the practical irresponsibility of the king was lost in the case of the consul.
It is true that the king was always in the Roman common wealth subject, and not superior, to the law; but, as according to the Roman view the supreme judge could not
be prosecuted at his own bar, the king might doubtless have
committed a crime, but there was for him no tribunal and no punishment. The consul, again, if he had committed murder or treason, was protected by his oflice, but only so long as it lasted; on his retirement he was liable to the ordinary penal jurisdiction like any other burgess.
To these leading changes, affecting the principles of the constitution, other restrictions were added of a subordinate and more external character, some of which nevertheless produced a deep effect. The privilege of the king to have his fields tilled by task-work of the burgesses, and the special relation of clientship in which the metoea' as a body must
1 The day of entering on oflice did not coincide with the beginning of the year (rst March), and was not at all fixed. The day of retiring was regulated by it, except when a consul was elected expressly in room of one who had dnopped out (mmul . tufictur); in which case the substitute succeeded to the rights and consequently to the term of him whom he re‘ placed. But these supplementary consuls in the earlier period only occurred when merely one of the consuls had dropped out : pairs of supplementary consuls are not found until the later ages of the republic. Ordinarily, therefore, the oflicial year of a consul consisted of unequal portions of two civil years.
Term d
Right of
have stood to the king, ceased of themselves with the life tenure of the oflice.
Hitherto in criminal processes as well as in fines and cor poral punishments it had been the province of the king not only to investigate and decide the cause, but also to decide whether the person found guilty should or should not be allowed to appeal for pardon. The Valerian law now (in
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CHANGE OF THE CONSTITUTION BOOK r!
I509. 245) enacted that the consul must allow the appeal of the condemned, where sentence of capital or corporal punish ment had been pronounced otherwise than by martial law —a regulation which by a later law (of uncertain date, but
‘51. passed before 303) was extended to heavy fines. In token of this right of appeal, when the consul appeared in the capacity of judge and not of general, the consular lictors laid aside the axes which they had previously carried by virtue of the penal jurisdiction belonging to their master. The law however threatened the magistrate, who did not allow due course to the prowcatio, with no other penalty than infamy-which, as matters then stood, was essentially nothing but a moral stain, and at the utmost only had the effect of disqualifying the infamous person from giving testimony. Here too the course followed was based on the same view, that it was in law impossible to diminish the old regal powers, and that the checks imposed upon the holder of the supreme authority in consequence of the revolution had, strictly viewed, only a practical and moral value. When therefore the consul acted within the old regal jurisdiction, he might in so acting perpetrate an injustice, but he committed no crime and consequently was not amenable for what he did to the penal judge.
A limitation similar in its tendency took place in the civil jurisdiction; for probably there was taken from the consuls at the very outset the right of deciding at their discretion a legal dispute between private persons.
The remodelling of the criminal as of civil procedure stood
CRAP. I CHANGE OF THE CONSTITUTION
321
in connection with a general arrangement respecting the Restric
tions on
the delega
83),
transference of magisterial power to deputies or successors.
While the king had been absolutely at liberty to nominate tion of deputies but had never been compelled to do so, the powers. consuls exercised the right of delegating power in an essentially different way. No doubt the rule that, if the supreme magistrate left the city, he had to appoint a warden there for the administration of justice
remained in force also for the consuls, and the collegiate arrangement was not even extended to such delegation;
on the contrary this appointment was laid on the consul
who was the last to leave the city. But the right of dele<
gation for the time when the consuls remained in the city
was probably restricted, upon the very introduction of this
office, by providing that delegation should be prescribed to
the consul for definite cases, but should be prohibited for
all cases in which was not so prescribed. According to
this principle, as we have said, the whole judicial system
was organized. The consul could certainly exercise criminal jurisdiction also as to capital process in the way of submitting his sentence to the community and having thereupon confirmed or rejected; but he never, so far
as we see, exercised this right, perhaps was soon not
allowed to exercise and possibly pronounced criminal judgment only in the case of appeal to the community being for any reason excluded. Direct conflict between the supreme magistrate of the community and the community itself was avoided, and the criminal procedure was organized really such way, that the supreme magistracy remained only in theory competent, but always acted through deputies who were necessary though appointed by himself. Thesewere thetwo-not standing—pronouncers-of-judgment for revolt and high treason (dam/irz’ perduelliom's) and the two standing trackers of murder, the quaestores pam'a'dz'i. Something similar may perhaps have occurred in the regal
VOL. 2!
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period, where the king had himself represented in such processes 19! ); but the standing character of the latter institution, and the collegiate principle carried out in both, belong at any rate to the republic. The latter arrangement became of great importance also, in so far that thereby for the first time alongside of the two standing supreme magistrates were placed two assistants, whom each supreme magistrate nominated at his entrance on oflice, and who in due course also went out with him on his leaving it—whose position thus, like the supreme magistracy itself, was organized accord ing to the principles of a standing oflice, of a collegiate form, and of an annual tenure. This was not indeed as yet the inferior magistracy itself, at least not in the sense which the republic associated with the magisterial position, inas much as the commissioners did not emanate from the choice of the community; but it doubtless became the starting point for the institution of subordinate magistrates, which was afterwards developed in so manifold ways.