Change of the regal Roman Constitution: The senate becomes the real governing power

The close of the regal period, and the causes which led to the subsequent changes in the Roman constitution, render it necessary for us to revert to the internal state of Rome itself. Three distinct movements agitated the community.

The first proceeded from the body of full citizens, and was confined to it: its object was to limit and lessen the life-power of the single president or king; in all such movements at Rome, from the time of the Tarquins to that of the Gracchi, there was no attempt to assert the rights of the individual at the expense of the state, nor to limit the power of the state, but only that of its magistrates.

The second was the demand for equality of political privileges, and was the cause of bitter struggles between the full burgesses and those, whether plebeians, freedmen, Latins, or Italians, who keenly resented their political inequality.

The third movement was an equally prolific source of trouble in Roman history; it arose from the embittered relations between landholders and those who had either lost possession of their farms, or, as was the case with many small farmers, held possession at the mercy of the capitalist or landlord.

These three movements must be clearly grasped, as upon them hinges the internal history of Rome. Although often intertwined and confused with one another, they were, nevertheless, essentially and fundamentally distinct. The natural outcome of the first was the abolition of the monarchy—a result which we find everywhere, alike in Greek and Italian states, and which seems to have been a certain evolution of the form of constitution peculiar to both peoples. What is remarkable in the change at Rome, is that violent measures had to be adopted, and that the Tarquins, both the king and all the members of his clan, had to be forcibly expelled.

The romantic details colouring this event do not affect the fact itself, nor are the reasons assigned by tradition undeserving of belief. Tarquin “the proud” is said to have neglected to consult the senate, and fill up the vacancies in it; to have pronounced sentences of death and confiscation without consulting his counsellors; to have stored his own granaries, and exacted undue military service and other duties from the citizens. The formal vow registered by each citizen that no king should ever again be tolerated, the blind hatred felt at Rome ever afterwards for the name of king, the enactment that the “king of sacrifice” (rex sacrorum) should never hold any other office,—all these sufficiently testify to the exasperation of the people. The change, violently accomplished as it was, did not abolish the royal power; the one life-king was simply replaced by two year-kings, called either generals (praetores) or judges (iudices) or, more commonly, colleagues (consules).

Although, probably from the first, the consuls divided their functions—the one, for instance, taking charge of the army, the other of the administration of justice—such a partition was not binding, and each possessed and exercised the supreme power as completely as the king had done. In consequence of this each consul could forbid what the other enjoined, and thus the consular commands, being both absolute, would, if they clashed, neutralize one another. It is hard to parallel this system of co-ordinate supreme authorities, which, if not peculiarly Roman, was a peculiarly Latin institution.

The object clearly was to preserve the regal power undiminished, but, by doubling the holder of this power, to neutralize its effects. The limit of a year, fixed for the duration of the consular office, was reckoned from the day of entry upon office to the day of the solemn laying down of power by the consuls; and, as the consuls to a certain extent laid down their power of their own free will, and as, even if they overstepped the year’s limit, their consular acts were still valid, they were not so much restricted directly by the law, as induced by it to restrict themselves. Still, the effect of this tenure of office for a set term was to abolish the irresponsibility of the king, who, as supreme judge, had been accountable to no tribunal and liable to no punishment. The consul, on the other hand, when his term had expired, and the protection given by his office had been removed, was liable to be called to account just like any other burgess. Together with the abolition of the monarchy, the ancient privilege of the king to have his fields tilled by the burgesses, and the position which the metoecs held as special clients of the king, naturally came to an end. The contrast between the old royal power and the new consular office was brought out more clearly by the following restrictions.

(1) The old right of appeal, which the king had granted or not at his pleasure in all criminal procedure, was now established by the Valerian law in 509 B.C.; the consul was now bound to grant this right to every criminal who was condemned to suffer capital or corporal punishment; unless, indeed, the sentence was pronounced under martial law. In token of this right, which before 451 B.C. was extended to cases of heavy fines, the consular lictors laid aside the axes, which had been the sign of the king’s penal jurisdiction.

(2) The need of deputies, which had caused, but not compelled, the king to appoint a city-warden (urbi praefectus) to act in his absence, ceased with the substitution of two consuls for one king. If the consul in time of war did entrust the supreme command to a deputy, such a deputy was only adjutant or lieutenant (legatus) of the consul. It is true that, in times of special emergency, the consuls could nominate a third colleague, who, under the name of dictator, revived the old single supremacy of the king, and who for the time was obeyed by the consuls and the whole state; but such an office was a special creation to meet an exceptional state of things.

(3) Although in the field a consul could delegate his functions to a deputy, at home he had no free will in the matter. The two quaestors (“trackers of murder”), whose appointment by the king to deal with criminal cases had not been obligatory although usual, became now regular state officers. The consul was obliged to nominate them, and their province was enlarged, so as to include the charge of the state treasure and state archives; their tenure of office, like that of the consuls, lasted for one year. On the other hand, the chief magistrate in the city had to act in person, or not at all, in those cases in which a delegation of his authority was not expressly incumbent on him. Thus in the home government no deputy acting for a city magistrate (pro magistratu) was possible, while military deputies (pro consule, pro praetore, pro quaestore) were only possible in the field, and had no power to act within the community itself.

(4) The consul retained the right, which the king had exercised absolutely, of nominating his successor, but he was bound to follow the expressed wishes of the community in his nomination. He might reject particular candidates, and at first even limit the choice to a list of candidates proposed by himself; and, what was more important, the candidate, once appointed, could never be deposed by the community.

(5) The consuls had not the right, which had belonged to the kings, of appointing the priests; the colleges of priests now filled up the vacancies in their own body, and the appointment of the vestals and single priests passed into the hands of the president, or Pontifex Maximus, now nominated for the first time by the pontifical college. Thus the supreme authority in religion was separated from the civil power, and the semi-magisterial position of the Pontifex Maximus is a further proof of the wish to impose limits on the consular power.

(6) The insignia of the consul were markedly inferior to those which had distinguished the king. The lictor’s axe was taken away, the purple robe of the king was replaced by the purple border of the consul’s toga, the royal chariot was abolished, and the consul was obliged, like every other citizen, to go on foot within the city.

We have above alluded to the revival of the royal power in the person of the dictator. His other title, “master of the army” (magister populi), as also that of his chief assistant (magister equitum, “master of the horse”), coupled with what we know about the circumstances and causes of his appointment, prove that the dictatorship was an essentially military institution. No doubt it was designed to obviate the disadvantage of divided power in the field, and its restriction to a maximum limit of six months indicates that the office was not to last longer than the duration of a summer campaign. The dictator was nominated by one of the consuls; and, as their colleague, he was obliged to lay down his office when they did. All magistrates were subject to him, and no appeal was allowed from his sentence; the community had no part in his election. The consuls, then, were, with certain restrictions, what the kings had been, the supreme administrators, judges, and generals; in matters of religion, too, they offered prayers and sacrifices for the community, and with the aid of skilled interpreters ascertained the will of the gods. The very restrictions which hampered the consuls could, in time of need, be broken through by the dictatorship, and Rome could see again, under a new name, the absolute authority of the king. 

A further change of great importance followed the new powers given to the community as a whole. The right of annually electing the consuls, and of deciding, upon appeal from a criminal, the life or death of a citizen, gave the public assembly something more than the passive formal part in state-administration which it had played under the kings. The growth, wealth, and importance of the plebs, and the necessity of their help in making the reform, rendered it impossible for all power to remain in the hands of the smaller body of the patriciate, which by this time had practically become an order of nobility. Therefore the new community was extended, so as to embrace the whole body of plebeians; all the non-burgesses, who were neither slaves nor citizens of foreign states, living at Rome under the ius hospitii, were admitted into the curies, and the old burgesses, who had hitherto formed the curies, lost the right of meeting and passing resolutions. Further, the curiate assembly (comitia curiata) had thus lost its fundamental character of burgesses belonging to different clans, and included many plebeians, who belonged to no clan, but were legally on an equal footing with the most aristocratic citizens. To obviate the results of such a democratic levelling, all political power was taken away from the comitia curiata, and was transferred to the assembly of the centuries (comitia centuriata); that is, to the assembled levy of those bound to military service, who now received the rights, as they had previously borne the burdens, of citizens. This body, originally constituted for purely military purposes, now decided cases of appeal, nominated magistrates, adopted or rejected laws. There was no debate in this assembly, any more than in that of the curies; but the constitution of the assembly gave the preponderance of power to the possessors of property; and the peculiar system, by which the decision of an election was often determined by the voting of the first centuries, gave a manifest advantage to the possessors of property, whose centuries had the privilege of giving their votes first.

The prerogatives of the senate were increased by the reform of the constitution. In addition to its old rights of appointing the interrex, and of confirming or rejecting the resolutions passed by the community, the senate could now either reject or confirm the appointment of the magistrates elected by the public assembly. The senate was still composed exclusively of patricians, but on occasions when its advice was asked, side by side with the patres, or true patrician senators, a number of non-patricians were admitted and “added to the senate-roll” (conscripti). These plebeians were not by this admission placed on a footing of equality; they did not become true senators, and were not invested with the senatorial insignia; they had no share in the magisterial prerogatives of the senate (auctoritas), nor were they allowed to express their opinion on those occasions when the senate met in the character of a state-council, and discussed what advice (consilium) should be tendered the community: they were simply silent voters in the divisions of the house, and called “foot-members” (pedarii) by the proud nobility, or “men who voted with their feet” (pedibus ire in sententiam). Still, this admission of plebeians into the senate-house was a most important step, and one fraught with no slight consequences.

Among the patres themselves distinctions of rank arose: those who had been consuls, or were already designated as successors to the outgoing consuls, occupied the first place on the senate-roll, and voted first; the position of the first of these, or foremost man of the senate (princeps senatus), naturally was much coveted. The consuls in office did not vote, but they selected the new members of the senate, alike the patres and the plebeian conscripti, although they were no doubt more restricted by the opinions of the nobility in their selection than the king had been.

Two rules early obtained—

(1) that the consulship entailed upon the holder of it admission to the senate for life;

(2) that vacancies in the senate were not filled up at once, but on the occasion of the census, taken every fourth year, when the roll of senators was revised and completed. The number of senators remained unchanged, and, from the fact that the conscripti were included in the number, we may infer the diminution of the number of patriciate clans.

It is easy to see what an immense preponderance of power the revolution gave the senate. Its right of rejecting the proposals of the comitia centuriata, its position as adviser of the chief magistrate, its tenure of office for life, as contrasted with the annual duration of magistracies,—all tended to place the government in its hands. But what chiefly did so, was the fact that the consul ruled for but a brief space, and was, on the expiry of his office, merely one of the nobility; and thus, even if a consul were inclined to question the senate’s influence, he lacked the first element of political power, viz. time; while his authority was paralyzed alike by the priestly colleges and his own colleagues, and, if need be, could be suspended by the dictatorship.

The result was that the senate became the real governing power, and the consul subsided into a president, acting as its chairman and executing its decrees. The senate also drew into its own hands the management of the state finances, by causing the consul to commit the administration of the public chest to two quaestors, who naturally became dependent on the senate.

The revolution thus accomplished at Rome was, as we have seen, conservative in its character, in that the fundamental elements of the old constitution were retained. It was, in fact, a compromise between the two state parties—the old burgesses and the plebeians—who, for the time being sank their party quarrels, and united, under the pressure of the common danger of a despotism. The necessity of their co-operation caused those mutual concessions we have described above, and the importance of the revolution lay far more in the indirect effects of those concessions than in the limit of time imposed on the supreme magistracy.

The chief of these indirect effects were

(1) the rise of the Roman citizens in the later sense of the term. The plebeians had hitherto been little better than aliens or metoecs in the eye of the law. Now they were enrolled in the curies as citizens, they voted in the common assembly and in the senate, and they were protected by the right of appeal.

(2) The elevation of the old burgess-body, or patriciate, into an exclusive aristocracy. The very incorporation of the plebeians into the burgess-body caused the patres to close up their ranks, and hold stubbornly to the privileges that remained to them: the admission of new clans into their body, which had not been very rare under the kings, now ceased. Although the plebeians might become military officers and senators, they could hold no public magistracy or priesthood: and the patres still maintained the legal impossibility of marriage between their order and the plebeians.

(3) It further became necessary to define the distinction between the enlarged burgess-body and those who were now the non-burgesses. 

(4) Further, at this period arose the separation between law and edict. The principle of Roman law that every command of a magistrate, even if illegal, was valid during his tenure of office, must, owing to the official life-tenure of a king, have caused the distinction between law and edict to have been lost sight of. But it is obvious that the annual change of consuls led to the two being clearly separated.

(5) The provinces of civil and military authority were now finally separated. The power of the consul within the city limits was restricted by law, as shown above; his power as general was absolute. Therefore the general and the army could not in their military capacity enter the city proper, unless allowed to do so. Thus the distinction between quirites and soldiers became deeply rooted in the minds of the people.

Viewing the revolution as a whole, its immediate effect was to establish an aristocratic government, by making the senate practically supreme. But the germs of a more representative constitution were visible. The enrolment of the plebeians among the burgesses, the admission of certain of them to the senate, were victories of happy augury for the future. Those plebeian families admitted on account of their wealth or position into the senate naturally held aloof from the mass of the plebs. In addition to this distinction in the plebeian body, there arose another out of the system of voting in the comitia centuriata, which placed the chief power in that class of farmers whose property was in excess of that of the small freeholders, but inferior to that of the great proprietors and this arrangement further enabled the seniors, although less numerous, to have as many voting divisions as the juniors. 

(Source: “The history of the Roman Republic”, by C. Bryans and F.J.R. Hendy)

Research-Selection for NovoScriptorium: Anastasius Philoponus

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