IX. _The right of electing and deposing its chiefs; query._
The incompleteness of our knowledge of the Roman gentes is shown quite plainly by the absence of direct information with respect to the tenure of the office of chief (_princeps_). Before the institution of political society each gens had its chief, and probably more than one. When the office became vacant it was necessarily filled, either by the election of one of the gentiles, as among the Iroquois, or taken by hereditary right. But the absence of any proof of hereditary right, and the presence of the elective principle with respect to nearly all offices under the republic, and before that, under the _reges_, leads to the inference that hereditary right was alien to the institutions of the Latin tribes. The highest office, that of rex, was elective, the office of senator was elective or by appointment, and that of consuls and of inferior magistrates. It varied with respect to the college of pontiffs instituted by Numa. At first the pontiffs themselves filled vacancies by election. Livy speaks of the election of a _pontifex maximus_ by the _comitia_ about 212 B. C.[321] By the _lex Domitia_ the right to elect the members of the several colleges of pontiffs and of priests was transferred to the people, but the law was subsequently modified by Sulla.[322]
The active presence of the elective principle among the Latin gentes when they first come under historical notice, and from that time through the period of the republic, furnishes strong grounds for the inference that the office of chief was elective in tenure. The democratic features of their social system, which present themselves at so many points, were inherited from the gentes. It would require positive evidence that the office of chief passed by hereditary right to overcome the presumption against it. The right to elect carries with it the right to depose from office, where the tenure is for life.
These chiefs, or a selection from them, composed the council of the several Latin tribes before the founding of Rome, which was the principal instrument of government. Traces of the three powers co-ordinated in the government appear among the Latin tribes as they did in the Grecian, namely: the council of chiefs, the assembly of the people, to which we must suppose the more important public measures were submitted for adoption or rejection, and the military commander. Mommsen remarks that "All of these cantons [tribes] were in primitive times politically sovereign, and each of them was governed by its prince, and the co-operation of the council of elders, and the assembly of the warriors."[323] The order of Mommsen's statement should be reversed, and the statement qualified. This council, from its functions and from its central position in their social system, of which it was a growth, held of necessity the supreme power in civil affairs. It was the council that governed, and not the military commander. "In all the cities belonging to civilized nations on the coasts of the Mediterranean," Niebuhr observes, "a senate was a no less essential and indispensable part of the state, than a popular assembly; it was a select body of elder citizens; such a council, says Aristotle, there always is, whether the council be aristocratical or democratical; even in oligarchies, be the number of sharers in the sovereignty ever so small, certain councilors are appointed for preparing public measures."[324] The senate of political society succeeded the council of chiefs of gentile society. Romulus formed the first Roman senate of a hundred elders; and as there were then but a hundred gentes, the inference is substantially conclusive that they were the chiefs of these gentes. The office was for life, and non-hereditary; whence the final inference, that the office of chief was at the time elective. Had it been otherwise there is every probability that the Roman senate would have been instituted as an hereditary body. Evidence of the essentially democratic constitution of ancient society meets us at many points, which fact has failed to find its way into the modern historical expositions of Grecian and Roman gentile society.