Constitution of the Roman Republic, by John A. North
From precedent to precedent a system evolved by extension of powers & procedures
John A. North wrote:
Chapter 12
THE CONSTITUTION OF THE ROMAN REPUBLIC
Introduction
Republican Rome never had a written constitution. This was not because the Romans were unaware of the possibility of codifying their constitutional practice, because they could and did produce written constitutions for the cities (coloniae) they founded in Italy, certainly by the end of the period and probably from the late fourth century onward. In their own case, however, they believed that their system had developed over generations through the accumulating wisdom of their ancestors, not through a single act of legislation. The constitution was not wholly unwritten either, because they passed many laws that modified preexisting practice, changing the number of magistrates, changing procedure in the assemblies, redefining the role of the Senate, and much else. There were also changes that were not so formally recognized, but simply accepted as the way in which business should be handled; adopting a procedure on a particular occasion might always form a precedent for the future.
The consequence is naturally to make the “Roman Constitution” difficult to define and elusive to locate. Modern accounts have sometimes seemed to give the impression of a unified, legally defined, coherent system. This impression is supported by detailed descriptions of the system in action based on reports of individual transactions. This is one sense in which the word “constitution” may be used; but the “constitution” is also the set of rules and principles, written or not, which defines what is permitted or forbidden within the established framework of sovereignty. This is normally evoked only when there are conflicts and disputes about the powers of different bodies or when changes in practice are needed or proposed. …
… The main argument will be that change and historical evolution must be recognized in any description of the working of the system and that its character must be assessed at any period in the light of that period’s conditions.
The term the Romans used for their own system of government was res publica, literally “the public thing,” which gave rise eventually to our word “republic.” The word was used both for the city or state as opposed to the individual citizen and for the particular constitutional system that they maintained from the end of the sixth century onward. The Romans themselves saw a high degree of continuity between the sixth-century origins of this form of government and its continuation down to the first century, to the lifetimes of Cicero and Caesar; but this long period saw radical changes in all aspects of the city of Rome and its life.
In the sixth century, Rome was a small town speaking a language shared only by its immediate neighbors, and controlling only a limited area of central Italy; by the first century, it had become the richest and most powerful state in the Mediterranean area, ruling directly territories from Spain in the West to Anatolia in the East. Even the idea of the Romans themselves had been transformed in the course of this unrelenting expansion: not only was the population of Rome the city perhaps approaching one million, but membership of the Roman community – “the Roman citizenship” – had been extended gradually outside the immediate vicinity of the city until it included all the free citizens of Italy. If there is truth to be found in the claim that the constitution was the same at the end of this process as it had been at the beginning, the element of continuity will need to be carefully defined. In any simple sense, the Roman system changed totally in the course of five centuries, though, as the Romans thought themselves, the underlying principles survived.
Cicero, in his political dialogue the Republic (Book 2), written in the 50s, not long before the collapse of the republican order during the 40s and 30s, traces republican institutions further back in time than the foundation of the Republic itself. The tradition he followed was that a succession of kings had ruled and to these the different republican institutions owed their origins, many to Romulus the founder, others to Numa, the founder of religious institutions, or to the later kings. The historian Livy, writing a quarter of a century later, presents this as a process of development: the early Romans needed parental guidance; when the last king turned tyrant and was expelled, they had matured and could take care of themselves (Livy 2.1). It is a paradox that the Romans designed their republican system to avoid kingship as the greatest threat to liberty; but regarded their early kings mostly as benefactors, not villains. If the historical accounts of the earliest Republic are to be trusted, then there must be some truth in this picture: basic institutions such as the Senate, the assemblies of the People, the priestly colleges, are assumed to exist already. Modern accounts, led by the classic works of nineteenth-century scholarship which assembled the data, have often followed this ancient tradition by seeing profound continuities from regal to republican Rome, especially in the nature of the powers exercised by the officials who took over from the kings.
There is a great deal to be said for the attempt to understand any constitutional system by tracing its development over time. There is, however, a major problem when applying this method to Rome: for the later Roman Republic we have good information; the earlier the period to be considered, the weaker is the information and the less reliable the conclusions that can be drawn. For the early Republic, we are almost wholly dependent on accounts written centuries later by historians, such as Livy and Dionysius of Halicarnassus, who, at best, had a limited grip on the historical situation they were describing. For the late republican system, we have strong and at times even contemporary sources of information. First, and most direct, are the texts of laws that were passed by Roman political assemblies, recorded as inscriptions on bronze and still surviving today; there are also texts of decrees of the Senate, preserved in various ways. Secondly, there is evidence to be drawn from historians, from other writers, and above all from Cicero’s speeches and correspondence about the actual practice of the assemblies, of the Senate at work, of other political meetings, of magistrates at home and abroad; from all this material we can infer much about the rules by which political life in fact operated. Thirdly, we have an invaluable account, written by the second-century Greek historian Polybius (in Histories, Book 6), of the constitution as he saw it – the view of a well-informed outsider. Fourthly, we have Cicero’s attempts, in his Republic and Laws, to write his own version of a Roman constitution, albeit as he would have preferred it rather than as it really was in his day.
The evidence is therefore rich, detailed and written from different viewpoints, but all of it comes from the last century of the Republic and is only fully reliable when dealing with that short and relatively well-documented period. One option therefore is simply to describe the late republican situation and not to attempt to reconstruct its past. Such a description is offered below; but it is not possible to be satisfied with this alone. Any constitutional system mediates between the past and the present: its purpose is to provide means of showing how present or proposed actions conform to an old-established rule. In addition, the Romans placed a high value on tradition and therefore took constitutional decisions on the basis of claimed ancient precedents. They appealed to the conception of the mos maiorum (ancestral custom) as a reliable guide to legitimacy, implying that continuity was always desirable. It is therefore necessary to work out how the constitution in fact developed so as to understand their ideas of the past. Historians of the Republic try to make sense of Rome’s history from the foundation of the Republic, however thin and inadequate they find the surviving accounts. It would be a counsel of despair to say that we cannot even trace some of the main lines of development.
Early Developments
Some key moments of the early history of the Romans formed an essential part of their awareness of their own past and of the character of their institutions. One such moment was the point (traditionally dated to 509) at which the last of the Roman kings was expelled and the monarchic system replaced by magistrates appointed annually. The standard ancient belief (as expressed, e.g., by Livy 2.1–2) was that from this date onward two consuls were elected to hold office for one year, and in due course hold elections for their successors. So, from the very beginning, principles were established that excluded the possibility of return to monarchy: a fixed term for any office; the sharing of power with a colleague; the need for elections to be held by the current office-holder. These principles certainly existed later on and continued to be valid through the late Republic and even into the Empire, but modern discussion has increasingly tended to see the situation after the expulsion of the kings as only a tentative first step toward this later system; on this view, historians writing in the first century BC simply failed to realize how different was the Rome of 600 from the one they knew 500 years later.
It is at least very plausible that the main features of the late republican state as described below can be traced back with some confidence into the second and third centuries. Rome in 300 was recognizably like Rome in 100 in its basic workings. Earlier than that, certainty is unattainable. One antiquarian source – but only one (Festus 290 L) – mentions incidentally that by an Ovinian law, of uncertain date but probably fourth-century, it was fixed that the Senate should consist of the “best men from every order” chosen by the censor, while previously it had been no disgrace for a leading Roman to be passed over in the list. This account can only imply that before the date of this law, the senators were not a fixed body of ex-magistrates, but that a new list was nominated each year. If so, they cannot conceivably have been playing the central role in the constitution that the later Senate did. The fact that we cannot be certain on such a fundamental point as this illustrates how deep are the problems in the way of reconstructing the situation in the fifth and fourth centuries.
The early history of the Roman Republic gave it in one respect at least a character different from most other constitutional systems: the Romans inherited from this early period two conflicting systems that coexisted within the republican order. One was the system of the populus; the other, that of the plebs. In the later Republic, it was believed that the early population had been divided into two castes, patricians and plebeians; the populus consisted of both castes, but the plebs only of plebeians. The great mass of the citizens were plebeians, while the political power lay with the patricians who controlled the offices, priesthoods, and law. It is uncertain whether this latter belief was correct or whether it was a retrojection of the situation in the late Republic, when certain patrician clans (gentes) held limited inherited privileges in access to office and priesthoods, while the mass of the citizens were plebeians, though by that time including many of the richest and most powerful of the gentes.
The accounts we have attribute one set of institutions to the populus Romanus, i.e., the established regime, dominated by the patricians; another set to the plebs. The plebeians had their own Assembly and, through it, they elected their own magistrates, made their own decisions, and passed their own laws. It seems almost as if there were two states coexisting within the single city, though with overlapping membership. These ancient plebeian institutions were still in existence in the late Republic and played a key role in political history throughout the Republic. The story goes that in the earliest days of the Republic their status was denied by the established regime; that their powers were accepted and incorporated in the course of the Struggle of the Orders; and that, once patricians and plebeians had settled their historic differences, what had once been revolutionary measures came to coexist peacefully with the traditional ones. There must be some truth in this narrative, because plebeian officers retained in the first century powers that could be used as weapons of resistance to the authority of the senatorial elite. The revival and use of these ancient powers played a crucial role in the progressive loss of control by the ruling elite that marked the years of the end of the second century and the first half of the first century.
It is also widely accepted that the last years of the fourth century and the early years of the third saw changes of great importance in the evolution of the Roman state. Militarily, Rome began the process of dominating Italy by the creation of a system of city foundations and alliances; politically, the richest families – both patrician and plebeian – were forging a new ruling class, based on success in reaching the consulship, for which both groups were now eligible, and on control of access to power through election. The resulting oligarchy is often called the nobiles (nobles), and although the meaning of the term is disputed and the use of any term suggests a degree of class stability that was never in fact achieved by the the great families concerned, it has served as a useful shorthand for the dominant elite at any point.
Constitutional Working in the Late Republic
In some respects, it is misleading to think of ancient political institutions through the same terminology as we use for modern ones. Such words as “democracy,” “government,” “the state”,“religion” suggest parallels between ancient and modern conditions that can easily mislead. One such crucial difference is that nothing in ancient Rome corresponds to our notion of an elected government or administration, a group of people charged with carrying on the business of the state and associated with specific theories or policies. In Rome, there were numbers of elected officials – “the magistrates” – charged with particular duties, but never meeting as a group. They held office for a year and were then replaced by their successors. There could be and often was conflict rather than cooperation between these office holders. Policy was discussed and formulated in various arenas (popular meetings (contiones); senate meetings; meetings in private houses), but decision and action depended on collaboration between three groups – the voting assemblies, the magistrates, and the Senate. Only by examining the interaction of the three can a picture emerge of the way the constitution could have worked; but first the character of each of the three must be assessed.
Voting Assemblies in Rome
At least in theory, the sovereign bodies in Rome were the primary assemblies (comitia) of the Roman People (whether as populus Romanus or plebs Romana). Only these bodies could hold elections for magistracies; only they could approve laws and also approve certain decisions for action; they were also traditionally courts of justice, though such trials had largely been taken over by standing courts (quaestiones perpetuae) by the first century. Without the approval of the comitia, much business could not have been completed. All Roman citizens had the right to vote; originally, this meant only those living in the immediate vicinity, but Romans throughout the republican period both admitted adjacent communities to their citizenship and accepted the descendants of freed slaves as full fellow-citizens. Women were entirely excluded from voting and office holding, as they were from military service. Rich women in the later Republic exercised much influence on politics, but not in any public arena.
The comitia did not include debate or discussion: the function of comitia was to take decisions by voting, the voters being divided into groups, different for the different comitia. Discussion and debate took place at a separate meeting called a contio. The contio was not informal: it had to be summoned by particular magistrates and concern particular business, but it did serve as a possible arena for the expression of views both by set speeches (some of which survive) and by demonstrations of enthusiasm or hostility toward proposals or individuals.
The system of voting by groups is a characteristic feature of the Roman system that had a remarkable impact on the nature of their political life and differentiated it sharply from the model of voting, known from, e.g., Athens, in which each adult male had a single vote equal to that of all others. Roman votes were never equal.
The three main types of assembly corresponded to three different divisions of the Roman People, by curiae (comitia curiata), by centuries (comitia centuriata), and by tribes (comitia tributa). The comitia curiata may have been the earliest, as the curiae were divisions connected with the regal tribal system, about which we know very little; in the late Republic this still met in the form of 30 representatives from the 30 curiae, but mostly for ceremonial or ritual purposes.
The comitia centuriata was also thought to have been created in the regal period, but was evidently reformed in the course of the Republican period; the century was originally a military unit and the comitia took place outside the city’s ritual boundary in the Campus Martius, as though it continued to be in essence a meeting of the Roman army. By the late Republic, the century to which an individual citizen belonged was determined, not by military considerations at all, but by a complicated system of classes based on a man’s declared property: thus, if you fell in a particular property class you were placed in a century appropriate to your status; also if you were over 46 years of age, you were placed in a century of older men (seniores). Proportionately more centuries were allocated to the richer citizens and the same number of centuries to the older ones as to the younger. The mass of the infantry, traditionally peasant farmer-soldiers owning their own land, were in the lower and larger property-classes. Those without property at all were all registered together in a single century. When the votes were being counted, the richer citizens voted first and once a majority had been reached, the result was declared. The effect of the system was to ensure that the older, richer citizens carried more effective voting weight, the younger and poorer less. It was a consciously contrived conservative system, insuring that the better-off voters would always determine the business, unless they were deeply divided amongst themselves.
The comitia tributa seems to have existed in two forms in the late Republic: the comitia plebis was the original assembly of the plebeians, presided over by the tribune; the comitia populi was a later formation, presided over by a consul or praetor. Both assemblies were based on the institution of the tribus (tribe). Each Roman citizen was by birth or by legal act a member of one of 35 tribes, and the full form of his name included the tribe to which he and his family belonged. The invention of the tribe was attributed to King Servius Tullius, who divided the city into four units for this purpose. As Roman citizenship expanded, the number of city tribes remained, but the number of “rustic tribes”, each representing a geographic area, increased progressively to the total of 35, reached in 241. From that point onward, new citizens were enrolled in the existing 35, so the geographic unity was lost and the tribes came to have membership drawn from different areas of Italy.
As with the other comitia, the system worked by voting within the group so as to determine how the tribe’s single vote would be cast, but in this case there was no apparent system of privileging the better-off citizens. However, the fact that the mass of the citizens living in the city of Rome was confined to the four urban tribes does imply that a man’s vote was worth more if he was registered in a “rustic” tribe than in an urban one. Presumably, also, since all assemblies were held in Rome, poor voters living far from the city would have been reluctant or unable to travel to vote. So the result might be that richer voters could dominate the 31 rustic tribes and ignore the views of the more populous urban ones. This effect, while real enough, may have been offset by the fact that membership in a tribe was inherited, so that those who migrated from country to city or from other parts of Italy into Rome, as thousands did, would have continued to vote in the tribe where their ancestors had originally been registered. In any case, the outcome seems to be that the comitia tributa was far more likely than the comitia centuriata to vote in ways of which the ruling elite disapproved. This is indeed what happened in the last years of the Republic.
Magistrates
In the late Republic, there was a sequence of magistracies of increasing seniority, which had to be held in order and which had minimum ages attached to them. The starting point was the office of quaestor, which could be held at the age of 30. The endpoint was the consulship, the senior magistracy of the sequence, which could be held at 42 by a plebeian, two years younger by a patrician. At every stage of this sequence there were competitive elections, and each successive office offered greater opportunities for influence and power, leading to the major commands which were only allocated to the consuls. Each office was only held once, so that opportunities did not recur if the first tenure was not a success; the consulship, however, could be held more than once, but only after a fixed interval of ten years.
At each level, the magistrates had defined duties to perform and defined powers that they were able to exercise. The supreme power lay with the consuls (or the dictator, in case of emergency) and had two aspects: the power (imperium) to command men either at home or in the military field and the power (auspicium) to consult the gods on behalf of the state. In the influential account developed by Mommsen, these powers both derived ultimately from the single unlimited power of the kings, which could only be passed on from one holder to another in unbroken sequence. Only the two consuls could hold elections for the senior offices of state. If both consuls died before one of them had held the elections in the comitia centuriata, no other magistrate, not even the praetor, could perform this function. If there were no consuls, the auspicia were said to revert to the patres, a term normally used for the whole Senate; in effect, the Senate acquired the right to appoint one of their number as interrex for five days, and this special official could either hand on the auspices to a successor or hold the elections himself. In this way the continuity of the auspices was preserved and a legitimate consul could be appointed. The title interrex obviously suggests that this institution derived from the times of the king (the rex), and it may be that the word patres in this context does not mean the whole Senate, but a special patrician subset of it. The senior magistrates were also confirmed in office by a special lex (law) called a lex curiata, which was passed in the comitia curiata; by the late Republic this law had become more or less a ritual action and its meaning was obscure even to contemporaries. But all these proceedings confirm how highly the Romans rated the idea of maintaining a chain of continuity from the earliest times.
Whatever may have been the character or name of the earliest senior magistracy of Rome, by the late Republic there had developed a hierarchy of offices through which the individual was expected to pass on his way to the senior office. There was no differentiation between civil and military careers, and competence was assumed in both respects, at least at the senior levels. Both quaestor and aedile had defined and relatively junior functions, the quaestor in finance or as the aide to a provincial governor, the aedile in the administration of Rome the city. The praetor’s position is far more powerful: he shares in the imperium of the two consuls, even though his own is lesser than that of a consul and he must give way in case of a conflict.
The tribunate of the plebs, although held by many plebeians in the course of the sequence of offices and before the praetorship, still carried with it the extraordinary powers that the early plebeians had fought to achieve in earlier centuries. The tribune did not have imperium and his powers were held to derive ultimately from oaths sworn by the plebeians, but subsequently accepted by the Roman state. The tribune had the right to intercede to protect the rights of any citizen if he needed protection against abuse by one of the other magistrates; he had the right of veto against any action of another magistrate, or against any decree of the Senate. Only the dictator was secure against a tribune’s intervention. The tribune also had the right to convene the Senate; to preside over the comitia tributa, and to call and address a contio. In other words, the office carried with it enormous potential for political action, but also a great capacity for disrupting the course of business when the tribune was resisting action that he judged not in the Roman People’s interest. Whatever the revolutionary origins of their office, by the third and second centuries, many tribunes were members of the same landowning families as were praetors and consuls; they also often, though not invariably, appear in the narrative of events as agents of senatorial policies, using their powers to propose legislation with senatorial backing. They do also on occasion act more independently or become involved in conflict with more senior magistrates, not least when they think the consuls are pursuing the draft more vigorously than they should.
The existence of the ancient rights of the tribune was not apparently a matter of dispute. Inconvenient they may have been, but it was only their use on individual occasions that was resisted. After 133, when Tiberius Gracchus, the son of a distinguished noble used it to pass legislation in the teeth of the Senate’s resistance, the office became spectacularly more prominent in political life. The trouble caused by successive reforming tribunes in subsequent years led to a determined attempt by the dictator Sulla in 81–80 to abolish many of their powers, and also to inhibit those who held the office from ever holding the higher magistracies. This ingenious attempt to separate the tribunate from the career ladder was bitterly resisted and had to be reversed in the course of the 70s. One limitation on the tribunate’s power was maintained: like other offices, it could only be held for one year and efforts to create the possibility of reelection were resisted.
The magistrates as a group were the main active agents in the Roman system. They held between them, for their year of office, the capacity to take political initiatives. Without their support, nothing could be done in the way of administration, legislation, or the furthering of any policy. It is tempting to think of them as the government; but in fact they acted as individuals, pursuing different objectives and clashing with one another. Only in the last days of the Republic do we find anything resembling a political party, or a conflict of ideologies, when two groups called the populares and the optimates are found in sporadic conflict; even then, the word popularis indicates not a popular party in our sense, but a set of attitudes, ideas, and political techniques adopted by those in any one year who were resisting the domination of the Senate by appealing to the voters for support, while the opposing term (optimates) indicates those defending traditional patterns of authority.
In order to work as successfully as it did, this political system made serious demands on its members. They had to accept limits on the fulfillment of their ambitions: the supreme ambition was to achieve high office, military success, the holding of a triumphal procession, and the political authority that these successes brought with them. To those who achieved this came glory, the possibility of higher office and repeated consulships; but they could only hold this power at long intervals, since the whole purpose of the system was to ensure the rotation of office between equals in the competition, so that nobody achieved a concentration of power and success such as to threaten the stability of the res publica. Those who failed to achieve glory as consul did not get a second chance. The implication was, for instance, that however talented you might be as a general, you could not achieve the command of an army until you were middle-aged; and even then you would have to give it up again at the end of your term. Secondly, since the magistrates were not in a position to act or think as a group and there was no government to do it for them, the only policy-forming body that existed was the Senate. If any coherent direction was to be maintained, the magistrates had to accept the authority of the Senate and treat its advice as binding.
The Senate
There were close links between magistracies and Senate. In the first place, all members of the Senate were normally ex-magistrates and in the last years of the Republic it was automatic that quaestors became senators, so that election to that office defined the members of the senatorial class year by year. Secondly, the Senate’s proceedings were structured by the ranking of the senators according to the level they had reached in their careers; thus the ex-consuls (the consulares) were given the first chance to speak in debate and were generally able to dominate. They were followed by the ex-praetors (praetorii), and so on. Junior members would rarely influence events. There was also a special magistracy called the censorship, held almost always by ex-consuls, whose duties included the reviewing of the lists of senators: they could expel senators of whom they disapproved and add to the list those they wished to advance. This particular task of the censors became unnecessary in the late Republic, with the new system of the automatic entry of the quaestors.
The Senate then provided a lifetime role of influence for those who had held the prescribed series of one-year offices. The constitutional powers of the Senate were limited, but their informal influence was very great. They could not pass laws, but only have them proposed by a magistrate to an assembly; they did not sit as a court of law; they could not elect any state officials. Their power rested mostly, though not entirely, on the respect that their advice commanded. Whereas an assembly law was expressed in the imperative mood and issued orders that had to be obeyed, a decree of the Senate characteristically conveyed the Senate’s opinion to the magistrate that he would be acting rightly if he took a certain step. The effect may be the same, but the implied relationship is quite different. As a matter of fact, in the late republican period, magistrates do quite frequently defy the Senate’s advice, and it is far from clear that the Senate could impose its wishes, other than by argument or pressure.
The Senate and the decrees that it passed dealt with a very wide range of Roman public business. They discussed military policy and the conduct of wars; they dealt with virtually all issues of foreign policy and received delegations from all kinds of cities, whether from within or without the established provinces; they handled much religious business, where religious rituals and political business converged; they dealt with financial matters of all kinds; they took responsibility for law and order issues throughout Italy. In many of these areas, they effectively made the decisions: for instance, year by year it was they who decided which legions would be allocated to which provinces and whether the commander should be a consul, a praetor or a promagistrate. The final details of which individual took which command was decided either by drawing lots or (in the case of the consuls) by agreement; but the allocation of resources to imperial purposes was a senatorial matter. It will be clear below that in other areas too they did far more than just offer advice.
The priests
Priesthoods in Rome must be seen as part of the constitutional system, but they have a very special role within it. The … most senior colleges (pontifices, augures …) consist for the most part of leading members of the ruling elite, including at any point exconsuls. It was not necessary to be a member of the Senate to become a priest; young men were sometimes chosen, but young priests always came from distinguished families and were unlikely to be non-senators for long. Priests, like senators, were appointed for life. When dealing with religious business, the Senate regularly consulted the relevant college of priests, though the final recommendation for action came from the Senate, not the college itself. The augurs in particular played a crucial constitutional role, as arbiters of the legitimacy of many forms of public action. All important public meetings were preceded by a consultation of the gods; any irregularity (vitium) in the conduct of these rituals threatened the legal status of the action that followed. In such matters, the college acted as an advisory body to the Senate on the state of the augural law (ius augurale). A similar role was played by the college of fetiales in relation to the making of treaties, the declaring of war, and the conduct of diplomatic relations before war with foreign powers. Again, they had their own system of law (ius fetiale) and could be asked by the Senate for advice.
Here as elsewhere, we find the Senate playing a crucial intermediary role: they asked the priests for an opinion about procedures, or questions of law; unless asked, the priests could only raise the matter in virtue of their status as senators, but not formally report as a college; when they did report, it was the Senate that issued instructions as to the actions to be taken. The procedure is at root the same as that when dealing with the annual list of prodigies: the priests were consulted about the year’s prodigies and their advice regularly heeded; but it was the Senate that decreed what should be done and in general the magistrates who carried out the rituals on the state’s behalf.
THE FUNCTIONING OF THE SYSTEM
The Senate was, then, the key institution in the making of policy decisions. The power of action lay with the magistrates, but they received and usually respected the Senate’s advice. It took courage if not foolhardiness to defy their advice, unless for very special reasons. Meanwhile, the assemblies were needed to confirm senatorial policy in some areas, to pass necessary legislation, and to elect the magistrates for each year.
Modern discussion has taken this view of the Senate to considerable lengths. The consensus has been that effective power really lay, at least until the last years of the Republic, with the great noble families of Rome, who were able as a group to control decision making in all spheres of action. They could monopolize the senior magistracies by excluding newcomers in the elections. Consequently their members dominated all the senior positions in the Senate, so virtually keeping control of its business. Voting in the assemblies on laws and other matters could be controlled by use of the influence of the great families over their members and their clients, so that effectively the major families had block votes with which they could negotiate.
It may seem surprising that the best ancient account of how this system functioned gives a radically different picture. It comes from the Greek historian Polybius, writing in the 140s–130s, just before the problems of the later republican years began (6.11– 18; 43–58). His view was that Rome was an example of a mixed constitution, by which he meant that the elements of monarchy (the consuls), of oligarchy (the Senate), and of democracy (the assemblies) were in balance, so that none of the three would threaten stability by becoming dominant and therefore extremist. This idea is evidently derived from the tradition of Greek political thought, which had long seen the rule of one, the rule of the few, and the rule of the many as the triad of possibilities for any city-state.
Polybius’ emphasis is not just on the three elements of the system; he has much to say also on the interdependence of these three elements and on the checks and balances that kept the whole system, on his view, in a state of long-term stability. He develops this idea in some detail (6.15–18), and it seems to be derived from direct knowledge or local information rather than from any Greek preconception. It is true, for instance, that the distribution of powers forced the Senate to make use of the powers of the magistrates to enact what it wished, or obstruct what it did not wish, and of the assemblies to vote on recommended laws. Polybius is right to say that the need for collaboration between institutions was a characteristic feature of the Roman system. From Polybius’ time onward, as he himself predicted (6.57), collaboration came to be less and less common among Roman politicians. How to reconcile Polybius’ ideas with the evidence of actual political practice in Rome has been a crucial issue in recent discussions of the constitution.
CHANGE AND CONFLICT
There is no doubt that the comitia had the power to change established constitutional practice in many areas, and frequently did so. Thus the Hortensian Law of c.287 established that the decrees of the plebs had the same force as laws passed through the other comitia; the ages at which the magistracies could be held were fixed by the Villian Law of 180; old methods of voting were replaced by secret ballots in the course of the 130s, through the Gabinian Law and the Cassian Law, the method of selecting priests of the major colleges was fixed by the Domitian Law of 104, and so on. Whether there were limits to this capacity is not clear, but legislation never seems to have touched directly on some core areas of the tradition such as imperium, auspicium, or the sacred laws of the priestly colleges. The Romans themselves must have been well aware that their constitution depended on a long series of laws, not just on tradition or the mos maiorum.
Major modifications were also introduced by evolution rather than legislation, and here there was obviously far more room for confusion as to what was traditional and what was the innovation of earlier generations. Thus, for example, the Roman system of administering provinces outside Italy seems largely to have developed from precedent to precedent. The original sense of the word provincia (province) was a job, which might be a legal task, an administrative task, or a military command; in the course of time, without losing the original sense, the word became specially associated with the area of the Empire to which a magistrate was sent. As the number of provinces to be administered grew, the Romans at first increased the number of praetors from the original one to two, four, and then six. But they also had a procedure called prorogatio, through which the power of an annual magistrate could be “prorogued” for a second or third year, during which the consul or praetor continued to hold the imperium and hence to hold a province or to command in the field if necessary. Originally this step had to be taken by a popular assembly, but it came to be a regular part of the Senate’s business to decide which provinciae should be consular or praetorian, and which should be held by prorogued magistrates from previous years. As a result of this, by the late second century, the provincial governors came to be not the current magistrates, who mostly stayed in Rome for the year, but the proconsuls and propraetors, who were the immediate ex-consuls or ex-praetors. This whole imperial system grew up, not as a result of legislation, but through the gradual extension of existing powers and procedures.
There is no question, therefore, that the constitution evolved over time, never remaining static for very long, and that the introduction of changes, whether brought about by legislation or by evolution, implied awareness in the reformers both of the existing order and of the possibility of innovation. Adaptability to new conditions was obviously essential in such a dramatically changing society as Rome over the centuries of the Republic, but the combination of belief in an ancient system with constant adjustment to new conditions must have brought risks. What happened when conflict arose, as it often did, between the different elements of the constitution?
A frequent source of conflict was in the charged relationship between the Senate and the individual commander or governor. One famous example was that of one of the consuls of 173, M. Popillius Laenas. Popillius, in command in Liguria, attacked a local people, the Statelliates, destroyed their town, and sold them into slavery, despite the fact that they had not made war on Rome and had surrendered unconditionally. Decrees were passed condemning these actions and instructing Popillius to reverse his “atrocious” actions. …. This produced constitutional deadlock, only broken when two tribunes took up the Senate’s cause, set up a special procedure to put Popillius on trial, and forced him to come back to Rome by threatening to have the trial conducted in his absence. …
The Senate’s constitutional weakness is very clear here, as on similar if less dramatic occasions. They are unable to act at all unless the presiding magistrate puts the motion to them; it is interesting that Popillius can load blame on the praetor who had chaired the Senate in the consuls’ absence. The only way forward is to find other friendly magistrates, the two tribunes who are prepared to take action in the comitia and propose legislation that sets the stage for judicial proceedings. Some of the specific weaknesses revealed here are gradually remedied in the legislation of the following decades, so that permanent courts and limitations on the actions of proconsuls are established between 149 and 80. But the weakness of the Senate’s capacity to enforce its wishes was not resolved.
A century later, in a very different situation, the same weakness is apparent in what the Senate can achieve. The senators in 62 almost to a man wished, rightly or wrongly, to find some way of condemning P. Clodius for an act of sacrilegious intrusion into the mysteries of the Bona Dea; our informant is Cicero, in letters written at the time, from a point of view totally hostile to Clodius. It becomes clear that the Senate can only act by persuading magistrates to put a bill to the Assembly on its behalf; the consul who carried out this duty did so at best half-heartedly and the proceedings were deferred. The Senate passed a stronger decree and a tribune vetoed it. The Senate next adopted the same tactic as in 171, refusing to conduct any business until the matter of the sacrilege had been resolved. Eventually a compromise was reached and the bill passed, in a weaker form. …
One circumstance in which the Senate did have the power of decision is in the cancellation of legislation of which it disapproved. This happened in the specialized case of a law passed in circumstances that violated the proper procedures, particularly the correct taking of the auspicia. The Senate could then consult the augurs who gave a ruling as to whether a vitium (fault) had occurred; if so, the Senate, receiving this report, had the power to pass a decree that the Roman People were not bound by the law. A similar procedure applied to faulty elections, where the Senate called on the magistrates to abdicate. In these particular cases, the augurs acted as a constitutional advisory committee. Their authority over the sacred law enabled them to give the Senate the basis for effective action, which it often lacked in other circumstances. …
… In many … circumstances of conflict, the evidence gives the strong impression that the search for a solution was not a matter of consistently applying established constitutional principles, but of finding some improvised solution. A series of incidents from the third century onward involved a clash between priests … did public duty override religious obligation? The priests themselves, the Senate, speeches at contiones, all failed to resolve the issue. … A vote by the sovereign Roman People was the only way to resolve such an issue; a way to hold the vote had to be found, even at the price of involving the tribunes.
At the end of the Republic, a famous long-running dispute encapsulates the problems. The Senate claimed the right, in the case of a constitutional crisis, to pass a decree (… their decree of last resort) calling on the magistrates to take any necessary measures to defend the Republic. It did so in its attempts to restrain successive reforming tribunes and to deal with the ensuing violence. ... It seems clear that the Senate’s claim had grown up, not as a result of any legislation, but on the basis of a supposedly traditional power; there seems to have been no way of testing its legality, except in the trials, but these are themselves indecisive, because the courts only had power to condemn or acquit, not to settle the constitutional issue. In 49, on the eve of civil war, the Senate used the decree again, this time against Caesar, despite the efforts of supportive tribunes to use their vetoes in his support. Caesar (B Civ. 1.5) criticizes the overriding of the veto and the abuse of the decree, but he does not challenge its validity.
The implication of this discussion is not that the Romans did not seek to resolve problems in line with established practice, using whatever precedents, traditions, laws, or decrees would provide guidance; but there seems to have been no easy route to achieving such a resolution. The constitutional rules changed as conditions varied; various different means were employed to make these changes; the situation of the Senate remained for the most part advisory in legal terms, while in practice it attempted to guide the Republic and all its policies. Progressively, the actual working of the political system rested less on clear constitutional principles and more on convention and tradition.
CHARACTERIZING THE ROMAN SYSTEM
Recent debate has concentrated very much on the issue of how the system of the Republic should be assessed. Differing views on this have led to the reexamination of many of the basic practices, particularly in the later Republic, where the evidence is so much stronger, but also in earlier periods. On what has in the past proved the dominant view, the constitutional set-up, as described, e.g., by Polybius, had little to do with the realities of power, except as a framework within which the dominant elite operated. Control, on this view, was exercised wholly by a landowning oligarchy of noble families, which succeeded in monopolizing access to the senior magistracies, in manipulating the business of the Senate in its own interest, and in controlling the actual voting by a mixture of persuasion and bribery, but above all through their long-term influence over their dependants, who included many citizens and the descendants of their freed slaves. The picture offered was therefore one in which there was virtually no limit during the middle republican centuries to the dominance of the great patrician and plebeian noble families. These families did indeed compete for office, for commands, and for for the profits that could be derived from commands; but they did so to an extent that did not admit outsiders into the circle of power and therefore did not compromise the complete domination exercised by their class. Quite elaborate techniques were devised by scholars to extract from evidence, often consisting of no more than lists of names, theories as to which families worked together in long-term alliances, which were hostile to one another.
The plausibility of these ideas always depended on treating the late republican period as radically different from the preceding centuries. With the revival progressively from 133 onward of tribunician resistance to senatorial control over decision making, political life in the late Republic became competitive and violent in ways inconceivable in earlier centuries. One possible factor in the change was the introduction of the secret ballot in the 130s, which may have destroyed the capacity of the noble families to check how their clients voted.
Since the mid-1980s a counter-theory has been developed that seeks to bring out the democratic elements and even to claim that the constitution of the Romans should be seen as democratic in its essential nature. The argument is based on the reversal in two respects of the dominant theory’s assumptions: first, it treats Polybius’ analysis of the constitution as first-class evidence; secondly, it uses the rich evidence from Cicero’s productive years in the 60s and 50s as evidence of Roman political ideas, assumptions, and attitudes.
There is no argument that Cicero’s speeches and letters reveal his constant concern with the state of public opinion among the People of Rome. To a great extent, he fears it and fears the success of his enemies in manipulating it to suit their own purposes, especially in the case of his archenemy Clodius. There is all the same an assumption behind what he writes that voting in the assemblies is of the highest importance; this is not a culture in which the ruling elite can afford to ignore popular wishes. There is a good deal of evidence to support this basic perception. So far as elections go, a late republican pamphlet–the Handbook on Electioneering (Commentariolum petitionis)–gives a cynical analysis of how to win votes: persuasion, promises, personal approaches, canvassing in the Forum, using all possible influence, and so on. There is much evidence of, or at least constant allegations of, the massive use of bribery by politicians, and enormous sums were spent putting on entertainments to please the voters: nobody spends money buying votes that do not matter. In the case of legislation, there is repeated evidence that laws were sometimes passed of which the senatorial majority strongly disapproved.
This view has been powerfully argued and attracted support; and few seem currently to wish to defend the old dominant view in its extreme form. But there have also been strong reactions. The democratic view rests very strongly on the evidence of the constitution; but that assumes precisely that descriptions of the constitution can be taken as at least approximating to the political realities at some point in time.
As argued above, Roman practice seems to have been far too changeable over time, far too liable to improvisation for this to be at all a reliable guide. Again, the interpretation of late republican rhetoric is itself a highly contentious field: Cicero speaks as if the comitia provided satisfactory expressions of the will of the Roman People; but he must have known better than we do the inadequacies of the system as an expression of the popular will. His language may reflect the necessities of political argument rather than the actual conditions of the time. Recent work has emphasized the problems of the voting system itself and generated lower and lower estimates of the percentage of those who had with the right to vote who could actually have voted on a single day. All theories have to reckon with the possibility that the voters were in fact only a slightly wider section of the political elite than the senatorial class, and that the whole political process had little or nothing to do with the poorer classes in Roman society, let alone those living in other parts of Italy.
Much scrutiny is currently focused on the character of public debate at contiones, of which we hear a good deal in Cicero’s speeches and letters. The truth may well be that such meetings resembled political theatre – or political advertising – rather than an ideal rational debate. Certainly at these debates, as in all political matters, the initiative rested with magistrates all drawn from rich, powerful families, who monopolized the wealth, the patronage, the rhetorical skills, the authority, not least the religious authority, that Roman society had to offer. These considerations lead naturally enough to the suggestion that the activity of politics in the late Republic would be better understood not on the model of modern preoccupations with the discovery and expression of the popular will, but rather as a highly ritualized expression of the relative powers of magistrates, Senate, and People aimed at achieving the consensus needed for common action. Interesting though this approach may be, there are still factors that it has difficulty explaining: actual decisions are taken by vote that the dominant elite deplores; and ideas and policies come to be associated with the two groups of political actors, both populares and optimates.
Underlying much of this debate is the controversy about how far the picture of Roman political culture that can be drawn from the rich evidence of the 60s and 50s can safely be transferred to earlier periods.
It is still arguable that the democratic elements in the Constitution became important when and only when the ruling elite were deeply divided on particular issues and the comitia became the only place where the disputes could be resolved. If so, then the evident concern with public opinion in Cicero’s day can be explained not as a long-term feature of the constitution, but as a function of the progressively more polarized attitudes within the elite as the challenge to the authority of the Senate by tribunes and proconsuls became ever more frequent. A good formulation would be that the constitution from early days carried with it a democratic potential which the dominant oligarchy strove to limit with varying degrees of success in different periods. Their greatest assets were their social and economic power, while the Senate’s constitutional position was an abiding vulnerability. In the late Republic, the personal restraints on which the system once depended had given way to an individualism to which there was no quick enough answer.
The Source:
John A. North, ‘The Constitution of the Roman Republic’ in A Companion to the Roman Republic, edited by Nathan Rosenstein and Robert Morstein-Marx, Blackwell Publishing 2006