THEODORE MOMMSEN. 855 



This is how Mommsen disposes of the problem of the tribunate. 

 He calls that institution a strange magistracy (seltsame Magistratur); 

 and the introduction thereof he calls a foolhardy experiment {ver 

 wegenes Experiment) or a pis aller (Nothbehelf)," In other words, 

 Mommsen disposes of the whole problem b}- sneering at it. In spite 

 of the innnensity of his studies of Roman constitutional law, he has 

 never so much as approached the only question that is both interesting' 

 and instructive for us moderns. If the tribunate be so strange, 

 abnormal, inorganic, as Mommsen, Schwegler, L. Lange, and all the 

 other German writers declare it to ha^•e been, why then was it the 

 only one of the institutions that even Sulla, in spite of the boundless 

 power he wielded, did not dare to abolish? Why did the tribunate 

 not become obsolete b}" the middle of the fourth century B. C, when 

 the plebeians had obtained practically all the rights that the tribunes 

 had been introduced to protect? To all this Mommsen does not vouch- 

 safe us the slightest reph\ The reason is that Monmisen, absolutely 

 unacquainted with magistracies whose powers are remotely similar to 

 that of an ancient Roman tribune, could not possil)ly rise to a real 

 grasp of that central institution of ancient Rome. In England alone, 

 of all modern countries, there has been in the last three or four 

 hundred 3'ears a magistracy whose power and character are essentially 

 that of Roman magistracies. The groat difference between modern 

 constitutions and that of the Romans is the simple fact that we mod- 

 erns attach the greatest importance to and invest with the greatest 

 powers the members of the national assembly, whereas the Romans 

 attached the greatest importance to and invested with the greatest 

 powers the incumbents of a few high magistracies. Or, to put it 

 even more shortly, the whole Roman constitution was ])ased on per- 

 sonality. In England alone we lind a similar principle at work, 

 not indeed in every department of the British constitution, 3'et in 

 the department of law. Law in England, that is, common law, was 

 intrusted to a few great judges who both administered and made it. 

 When in the times of the Tudors, and probal)ly before them, the 

 incumbents of those great law offices abused their powers, it became 

 natural to check and combat them ])y the introduction of a counter 

 judge, likewise invested with unbounded power. The power of the 

 justices of common law l)eing purely personal and practically irre- 

 sponsible, it became inevita])le to check them by the establishment of 

 the lord chancellors as judges, who likewise created the law of eciuit}- 

 of their own good will, and practically without any respousibilit3\ 

 Lord Ellesmere, chancellor under »Iames I, "plainl}- claimed power 

 to determine new cases on new principles, even against the law, and to 

 legislate on individual rights." (Kerly, D. M., "Historical Sketch of 



«R. G., p. 276 (8th t'dition). 

 SM 1903 55 



