allowed him the opportunity of pleading for pardon.  This was the beginning of the -provocatio-, which for that reason was especially permitted not to the transgressor who had refused to plead guilty and had 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 deemed themselves released from it on account of injuries inflicted on them.  Hence it was necessary that they should be consulted when an aggressive war was contemplated, but not on occasion of a defensive war, where 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 usual assembly of the burgesses, but to the army.  Thus, in general, it was necessary to consult the burgesses whenever the king meditated any innovation, any change of the existing public law; and in so far the right of legislation was from antiquity not a right of the king, but a right of the king and the community.  In these and all similar cases the king could not act with legal effect without the cooperation of the community; the man whom the king alone declared a patrician remained as before a non-burgess, and the invalid act could only carry consequences possibly -de facto-, not -de jure-.  Thus far the assembly of the community, however restricted and bound at its emergence, was yet from antiquity a constituent element of the Roman commonwealth, and was in law superior to, rather than co-ordinate with, the king.

The Senate

But by the side of the king and of the burgess-assembly there appears in the earliest constitution of the community a third original power, not destined for acting like the former or for resolving like the latter, and yet co-ordinate with both and within its own rightful sphere placed over both.  This was the council of elders or -senatus-.  Beyond doubt it had its origin in the clan-constitution:  the old tradition that in the original Rome the senate was composed of all the heads of households is correct in state-law to this extent, that each of the clans of the later Rome which had not merely migrated thither at a more recent date referred its origin to one of those household-fathers of the primitive city as its ancestor and patriarch.  If, as is probable, there was once in Rome or at any rate in Latium a time when, like the state itself, each of its ultimate constituents, that is to say each clan, had virtually a monarchical organization and was under the rule of an elder—­whether raised to that position by the choice of the clansmen or of his predecessor, or in virtue of hereditary succession—­the senate of that time was nothing but the collective body of these clan-elders, and accordingly an institution independent of the king and of the burgess-assembly; in contradistinction to