Roman Public Life

by A. H. J. Greenidge

And, as the consuls nominated their delegates, so the regal tradition was continued which gave them the nomination of their council of state, the Senate. In their choice of members they were legally as unfettered as the king had been, and could summon new members or omit to summon those already on the list.[332] So far as law went, the personnel of the Senate might now be changed annually. But custom must have been stronger than law. The body had gained a definiteness in its constitution, based on its representative character and probably on actual life-membership, which could not be easily destroyed, and the consul had a colleague at his side to check any attempt at capricious removal or selection. The short tenure of office must already have made a magistrate unwilling to exercise a power which might be so easily turned against himself in the near future. The discretionary power of the magistrate would have made the choice of Plebeians possible, now that they were possessed of all the essential rights of full citizenship;[333] but it does not appear that this choice could have been often, if ever, exercised. The patrician clans had a close hereditary connexion with the Senate; the interregnum, which was the transmission of auspices by the patres, had long been one of its privileges, and the prejudices of the patrician magistracy would hardly have allowed it to dip into the inferior order for councillors. If there be any truth in the story that, on the abolition of the monarchy, the thinned ranks of the patres were again raised to 300 by the inclusion of persons specially enrolled (adlecti or conscripti),[334] these added members were probably, like their predecessors, patrician. This large increase (placed by some at 164 members) gave rise to a transitory distinction between the older members and the new members, which—expressed in the formula of summons “qui patres, qui conscripti (estis)”—was finally merged in the general appellation of “conscript fathers.”[335] The expression may have originated with the abandonment or modification of some original principle of selection; but, if conscripti be taken to apply wholly to Plebeians, some date later than the commencement of the Republic must be accepted for the origin of the term.[336]

The history, indeed, of the next hundred and fifty years shows that the Senate is the stronghold of patrician prejudice. The power from which the Plebeians try to shake themselves free, is the patrum auctoritas, and the magistracy must soon have yielded to the demands of the new burgesses, had it not been backed up by a patrician council. Yet during the early Republic the Senate was a power distinctly secondary to the magistrates. Its two undoubted prerogatives were the interregnum and the patrum auctoritas. The first was exercised, perhaps, more occasionally even than it had been under the monarchy, for it could not be resorted to if one of the two consuls existed to nominate a successor. The second power, on the other hand, must have become far more formal than it had been in the time of the monarchy. Then it had been little more than the claim of the council to be consulted on important business;[337] now it was put forward as an integral part of the procedure of the state; it was framed after the voting in the assembly had taken place, and no law or election could be valid which had not, after it had passed the people, received this formal consent of the patres. We cannot trace the widening of the other powers of the Senate; but we must assume that it took up a more independent position in face of the consuls than it had done in that of the king. Perhaps the establishment of a treasury and of financial quaestors, who may have been selected from the council, led to its first connexion with finance. The new importance that foreign affairs assumed, in the constant wars in which Rome was engaged with the nations of Italy, must certainly have strengthened its control of this department.

But, on the whole, the earliest period of the history of the Republic is the epoch of the power of the magistracy. The traditions of the monarchy were so little forgotten that eight years after the establishment of the Republic, kingship in a modified form was again restored.[338] In 501 B.C., during a war with the Latins, the consuls nominated an individual with the royal title and powers. It was understood that this magister populi, or, as he was afterwards called, dictator,[339] was to remain in power only so long as the danger lasted; as the danger was originally military, a single campaign of six months was held to be the maximum duration of the office. During this time he was to exercise the full regal imperium, within as well as without the city, and the accompanying military jurisdiction without appeal. He was originally understood to be a purely military official and the commander of the infantry force; the command of the cavalry he entrusted to a magistrate who, on the analogy of the magistracies of the monarchy, was a delegate of his own, and bore the title “master of the horse” (magister equitum).[340] The dictatorship was conceived of as a purely military office, and, though it was occasionally used for other purposes in the later constitution, never lost its primitive character. Although it impeded for a time some of the most characteristic functions of the consuls, it was not a suspension, but a part of, the constitution. A small, struggling, and essentially military society, such as that of early Rome, contemplated martial law as an occasional necessity; there were times when the peril of the state was so great that it was felt that the citizens’ ordinary guarantees of protection should sink into abeyance if they were thought likely to interfere with the safety of the commonwealth. The dictatorship had an internal as well as an external side to its military character; it was even, perhaps, on its earliest institution, meant to control disobedient citizens as well as to oppose the enemy,[341] and was thus to some extent a party weapon in the hands of the Patricians against the refractory Plebs. We shall find that this summary military jurisdiction within the city was subsequently abolished, without much loss to the utility of the institution. Its true merit was the unity of administration which it created, the advantages of which were made more apparent by the clashing powers of the magistrates at a later stage of history. But the experience of the evils of divided authority did not first point out the necessity of the office. The dictatorship was an integral part of the original Republican constitution; the law allowing it was forgotten—perhaps it was the first lex Valeria which secured the appeal against the ordinary magistrates; but the right of the consul to declare martial law, as he did by appointing a dictator, was never questioned as was the parallel right, usurped by the Senate in later times, of arming the consul with military jurisdiction. But, although the nomination of a dictator could not be regarded as a violation of, or even as a break in, the constitution, it was rightly held to be a powerful party weapon in the hands of the patrician magistracy; and the attempts of the Plebs were directed, however unsuccessfully, to limit this mighty power which over-rode all privilege and law.

But the appointment of a dictator was supposed to be due to exceptional circumstances. It is only when we look to the peaceful life of the state, to the administration of law by the magistrate or the expression of popular will in the comitia, that we can estimate the strength of the position held by the patrician families.

The criminal law, which was doubtless during this period becoming more and more secularised and divorced from the direct control of religion, was the monopoly of the official class. A criminal case was an inquiry undertaken solely on the initiative of the magistrate; no question could come before the people until he had investigated it, and was then only submitted in a form prepared by him. In the early popular courts at Rome there was no power of amendment; the people could answer only “Yes” or “No” to the question put before them. We are ignorant of the extent of popular jurisdiction; it is possible that only sentences affecting the caput of a citizen were submitted to the assembly.[342] But there was no real guarantee that even such questions could be forced from the magistrate’s court. The lex Valeria which admitted the provocatio imposed no penalty on the magistrate who violated its provisions; the only hope lay in the veto of his colleague, and, if two consuls were in agreement, they might ride roughshod over the law. The consuls were ostensibly the only guardians of the criminal code; as it is inconceivable that, in an age which made little use of writing, two men selected on very varied grounds could have been regarded as fit expounders of this form of jus, we must, even in the domain of criminal law, go behind them and seek its true source in that formidable body, the college of pontiffs. The learning and activity of this body is known to us, however, chiefly in connexion with the divine or family or, as it would have been called in later times, the civil law. The change from monarchy to aristocracy introduced, in Rome as in Greece, an epoch of religious tyranny. A king, who is the head of the religious as well as of the secular life of the state, may hold the balance between the classes. He is more likely to repress than to encourage his advisers; he may find in popular rights a useful check to religious insolence. But remove the king and substitute an aristocracy like the Patriciate whose members hold supreme office in turn; let there be no distinction between clergy and laity in this body, so that there can be no conflict between the secular and sacred power, which may enable a third power to gain a footing; and let this body have a monopoly of the civil law—and we get unequalled possibilities of judicial tyranny. For two hundred years (509-304) the knowledge of the forms of procedure, the legis actiones, which formed the whole content of the civil law, was open to the patrician pontiffs alone.[343] We are told that, even after the outlined codification and publication of the law in the Twelve Tables, the formularies could only be repeated correctly under the guidance of the college, which for this purpose annually appointed one of its members to “preside over private suits.” It is true that the theory of civil procedure was the same as it had been in the time of the monarchy; the magistrate decided what special rule of process was applicable, and then the case was settled by an arbitrator chosen by the litigants.[344] But the magistrate must often have been unskilled, one of the college must always have stood by his side, and the pontiff so officiating was not merely an adviser to the parties but a witness to the performance. The pontiffs, however, were more than interpreters. They had, as the guardians of fas, their own sphere of law, relics of which survived into the late Republic, and within this sphere they were judges. They had a graduated scale of expiations for sins (piacula); they were the police who protected the sanctity of festal days (feriae), and inflicted spiritual penalties on the magistrate himself who dared to exercise jurisdiction on a day which they had declared holy; they issued and enforced commands which protected sacred places (loci sacri) and burial-grounds.[345] Vows (vota), to be effective, must be prescribed by them, and peculiarly efficacious were those fixed forms of prayer (certae precationes) which they had dictated word for word (de scripto praeire).

Against this phalanx of patrician power what forces could the Plebeians boast?

A certain amount of voting power in the comitia was all that they possessed. But this voting power, except on certain established points—the declaration of war and, when the law was observed, criminal jurisdiction—was very ineffective, for the assembly was wholly dependent for its summons and expression of opinion on the patrician consuls, and liable to interruption from the pious scruples of patrician augurs; and we have already seen how even the choice of magistrates could be hampered by the formalities which still conditioned the election.[346] But, even had these adverse circumstances been avoided, the voting power of the Plebeians was small. The comitia centuriata contained chiefly the propertied—for the most part the landed—class; and even in this assembly the two first classes and the knights, which would have consisted mainly of Patricians, had a majority of votes (118 out of 193). The small farmers and the artisans commanded but 74 or 75 votes; the great mass of the Proletariate was either wholly unrepresented or could dispose of but a single vote. It is important to inquire whether these classes excluded from the centuries were represented elsewhere, or whether there was an assembly possessing any real power in which Patricians and Plebeians were alike represented.

It has been proved beyond a doubt that at some period during the first three centuries of the Republic Plebeians came to be included in the comitia curiata.[347] The change was the result of two circumstances; firstly, the perfect equality of private rights between the members of the two orders—adrogation and adoption, both of which followed the possession of a familia, and in many cases gentilitas, being common to both—which rendered it impossible to draw distinctions amongst the curiales; and secondly, the reactionary influence of the centuriate assembly, which emphasised the idea that Patricians and Plebeians together made up the Populus.

Such a change must have been gradual; but, when it had occurred, the admission of the Plebeians made this assembly thoroughly democratic in form, for a vote in this comitia depended neither on land or wealth, but simply on personal membership of a curia, which was common to all the citizens. But it is the very comparison of such a body with the thoroughly timocratic organisation of the comitia centuriata which leads us to believe that, at the time when the Plebeians were admitted, the curiae had ceased to be a power. The condition reached by the comitia curiata in historical times will be described elsewhere. Its most distinctive right—the lex curiata—had perhaps been a real power in the hands of the Patricians, as long as they were its sole members, although their preponderance in the comitia centuriata would have made a conflict between these two bodies unlikely; but there probably never was a time when the masses of the Plebs gathered curiatim upset the verdict of the Patricians and wealthy Plebeians assembled centuriatim.