This was the adrogatio. In the ordinary course of law burgess-rights could only be acquired by birth, and could never be lost—unless the community should confer the patriciate, or allow its surrender; neither of which acts, doubtless, could validly take place originally without a decree of the curies. In the ordinary course of law the criminal whose crime deserved death, when once the king or his depute[errata 1] had pronounced sentence according to judgment and justice, was inexorably executed; for the king could only judge, not pardon—unless the condemned burgess appealed to the mercy of the community, and the judge allowed him the opportunity of pleading for pardon. This was the beginning of the provocatio, which accordingly was especially permitted, not to the transgressor who had refused to plead guilty and been convicted, but to him who confessed his crime and urged reasons in palliation of it. In the ordinary course of law the perpetual treaty concluded with a neighbouring state might not be broken—unless the burgesses allowed its breach on account of injuries inflicted. Hence it was necessary that they should be consulted when an aggressive war was contemplated, but not on occasion of a defensive war when the other state had broken the treaty, nor on the conclusion of peace; it appears, however, that the question was in such a case addressed, not to the assembly of curies, but to the army. Thus, in fine, it was necessary to cons ult the burgesses whenever the king meditated any innovation, any change of the existing public law; and in so far the the right of legislation was from antiquity a right of the community, not of the king. In these, and all similar cases, the king could not act with legal effect without the co-operation of the community: the man whom the king alone declared a patrician remained a non-burgess as before, and the invalid act could only carry consequences de facto, not de jure. Thus far, then, the assembly of the community, restricted and hampered as it at first appears, was yet from antiquity a constituent element of the Roman commonwealth, and its prerogatives and action were by no means, like those of the senate, made ultimately to depend on the arbitrary will of the king.
The original constitution of Rome. Let us now sum up the results. Sovereignty, as conceived by the Romans, was inherent in the burgesses; but they were only entitled to act alone in case of necessity, and onlyPage:The history of Rome. Translated with the author's sanction and additions.djvu/103
Chap. V.]
ORIGINAL CONSTITUTION OF ROME.
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