d, 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
the latter, which was directly composed of the whole body of the
burgesses, it was in some measure a repres