Page:The history of Rome. Translated with the author's sanction and additions.djvu/102

82 phaned commonwealth devolved for the time upon tho burgesses, till a new master was got; and, in that case, that body unbidden nominated the first interrex (P. 68). It was only exceptionally, however, and when need required, that the burgesses thus acted of their own motion; and, therefore, the interrex chosen by the community unsummoned was not regarded as having been quite validly chosen. Ordinarily, on the other hand, the sovereignty of the state was only exercised by the burgesses and the king or interrex in co-operation. As the legal relation between ruler and ruled was itself ratified like a contract by oral question and answer, so every sovereign act of the community was completed by means of a question (rogatio), which the king—but only he, never his alter ego (P. 68)—addressed to the burgesses, and to which the majority of the curies gave an affirmative answer. In this case their consent might undoubtedly be refused. Among the Romans, therefore, law was not primarily, as we conceive it, a command addressed by the sovereign to the whole members of the community, but, primarily, a contract concluded between the constitutive powers of the state by address and counter-address. Such a legislative contract was requisite in the eye of the law in all cases which involved a deviation from the ordinary consistency of the legal system. In the ordinary course of law any one might, without restriction, give away his property to whom he would, but only upon condition of its immediate transfer: that the property should continue for the time being with the owner, and at his death pass over to another, was a legal impossibility—unless the community should allow it; a permission, which, in this case, the burgesses could grant, not only when assembled in their curies, but also when drawn up for battle. This was the origin of testaments. In the ordinary course of law the free man could not lose or surrender the inalienable blessing of freedom, and therefore he who was subject to no house-master could not subject himself to another in the character of a son—unless the community should grant him leave to do so.