Roman Public Life

by A. H. J. Greenidge

An observance of certain forms had always been necessary for the legislative activity of the people to be regular and valid. In countries which recognise the sovereignty of parliament, the guardian of such forms is in the first instance the legislative chamber itself, in the second the courts of justice, which can, or should, be allowed to refuse to put into effect any law that has been passed in disregard of such formalities. This was the case at Rome. The laws themselves contained clauses which pronounced their ineffectiveness in case they should be found to violate the principles of the constitution, and the courts of justice had the courage to resist the enactments even of the provisional government of the dictator Sulla. But the executive authority might also have doubts about the propriety of putting into force a measure which it recognised to be irregular; and of this executive authority the Senate was the guide. Hence its well-established claim to point out a flaw in a legislative enactment, to establish the fact that the magistrate had questioned the people improperly, and that the answer of the people was therefore null and void. The exercise of this revising power once led to the greatest upheaval that Roman history records. It was by pointing out that the law of the younger Livius Drusus, which contained amongst its other clauses the gift of civitas to the allies, was irregular as contravening the condition fixed by a lex Caecilia Didia (98 B.C.) that wholly different enactments should not be contained in the same rogatio,[1335] that the Senate brought to a head the formidable conspiracy which culminated in the outbreak of the social war. History also brings to our notice the attempted reversal by this means of a popular judgment of a far smaller kind. It was suggested in the Senate that a notice of the alleged irregularities of Clodius’ plebiscitum should be made the ground of Cicero’s recall; but the exiled orator, while thinking that there was “something in the notion,” yet preferred the far safer form of an abrogation of the enactment by the popular voice itself.[1336]

When we turn from legislation to its complement of jurisdiction we find little direct interference by the Senate with the regular course of either civil or criminal procedure. On exceptional occasions it might decide the sphere of the praetor’s activity,[1337] and by its practical weight in the declaration of a justitium it might suspend the operation of the business of the courts; but it did not interfere in the details of such business, and the appeals to the vetoing magistrates were left to their own discretion.

With respect to the criminal jurisdiction of the regular courts, although the Senate never assumed a faculty for determining the procedure or the sentence, it sometimes took the initiative in a prosecution by suggesting that a charge should be brought, and this implication might be contained in a senatorial judgment that a certain course of action was contra rem publicam.[1338] With respect to an extraordinary commission, the true theory of the Republic was that it could be established only by the people. The procedure adopted against Clodius for the violation of the rites of the Bona Dea is typical of the constitutional method that should always have been employed. The offence which he had committed—though vaguely designated “incest”—was one that in that particular form was unknown to Roman law. First the college of pontiffs is consulted, and pronounces the act an offence against religion (nefas); then a decree of the Senate is framed specifying the crime and the procedure, which is modelled as closely as possible on that of the ordinary criminal courts. This decree is then submitted for ratification to the judgment of the people.[1339] Acts of attainder are a lamentable confession of weakness in a political, social, and legal system; but it was right that this weakness should not be remedied by an administrative authority representing a single caste.

But there were certain emergencies which it was thought could not be met, even by the establishment of a special judicial commission. Epidemics of crime, such as poisoning, arson, murder, seemed to demand the immediate exercise of the magistrate’s imperium, and for this exercise the Senate is the directing and controlling force. Such an exercise of magisterial coercitio at the behest of the Senate is practically a declaration of martial law, although the Senate by its decree does not create a new power, but simply urges the magistrate to set free the forces latent in his imperium. The earlier Republic had provided a suspension of constitutional procedure in the form of the dictatorship as a means of meeting such an emergency; the later constitution had no such provision, and the burden of responsibility fell on the joint shoulders of Senate and magistrates. Whether the exercise of such summary capital jurisdiction was legal depended on the status and sex of the victims. If the 170 women put to death for poisoning in 331 B.C.[1340] were executed by magisterial decree, the act was legal, for women had no right of appeal. Similar legality attended its exercise over provincials;[1341] and, if similar sentences were inflicted on Italian allies,[1342] it was a gross violation of treaty obligations, but not of the laws of Rome. The male citizen alone might not be put to death in this summary fashion; and if the Roman members of the great criminal society of the Bacchanalian guild were executed without appeal,[1343] this was a judicial murder only justified by the horror excited in the public mind by the blackest crimes masquerading under the guise of religion. We still possess a fragmentary copy of the decree by which this “conspiracy” was repressed; in it the Senate thinks that “capital punishment should be inflicted,”[1344] but the decree does not by its wording suspend the ordinary laws of appeal.

This guardianship of the state against conspiracies (conjurationes) may have been the precedent for a power, the legality of which, as exercised by the Senate during the last century of the Republic, was hotly contested. This was the power of declaring the existence of a condition of things which the Greeks would have denominated στάσις, of singling out a party in the state and its leaders as enemies (hostes) to the Republic, the latter being professedly represented by the Senate itself and the magistrates who happened to be friendly to it, and of advising the magistrates who were its presidents, above all the magistrates with imperium, and sometimes even the pro-magistrates,[1345] to employ every means of summary coercion to ward off the impending danger. The formula for thus entrusting the guardianship of the community to a clique of friendly magistrates was expressed in the words “that the consuls, praetors, and tribunes of the Plebs (with the addition at times of other officials with the imperium) should see that the state took no harm.”[1346] After the passing of this decree the responsibility of the Senate ceases; the magistrates act at their own peril and cannot again devolve any responsibility for a judicial murder they may have committed in the execution of their instructions by again consulting the Senate on the guilt of their victims or on the method of execution to be employed.[1347] There were obvious reasons which rendered it impossible for this power to be based on any distant precedent; like the power last discussed it was a substitute for the vanished dictatorship, which was an integral part of the constitution, and subsequently to the decline of this office there was no revolution in Rome antecedent to that which was held by conservatives to have been inaugurated by the legislation of the Gracchi. But, even apart from the question of precedent, the absurdity of the Senate’s claim to be guardian of the Republic is manifested by the fact that the opposite party in the stasis might more truly represent the theory of the constitution, as the Gracchan party did, than the Senate’s government itself; a broad line separates political opposition, even with the utmost force to back it, from criminal conspiracy against society, and by the passing of this “ultimate decree” the Senate declared itself the author of a revolution. The controversy as to right is here insoluble: the insolubility depends on the fact that there was no permanent government at Rome except that of convention and of force.

Yet Roman sentiment would have declared that there were times when the decree and its consequences were justified. Force can only be met by force, and a gathering such as Catiline’s army in Etruria was a fair object of attack by the executive authorities; but sentiment would not have allowed the execution without appeal of a few prisoners captured within the city, however grave the danger. A state of war must be recognised, but there was no power in the Roman state that could declare martial law and execute its consequences.

The exercise of this unprecedented power evoked a vigorous protest from the true government, the people.[1348] The plebiscite passed by the younger Gracchus was aimed more directly at the magistrates, and it improved on the Valerian laws by enacting “that no judicium should be exercised on the caput of a Roman citizen without the consent of the people.”[1349] But it is possible that it made senators individually responsible for the decree authorising such conduct on the part of the magistrates,[1350] and it is almost certain that it abrogated a clause in the law of the Twelve Tables by declaring that the Plebs might exercise capital jurisdiction against a magistrate guilty of violating the provisions of the measure.[1351] Henceforth there could be no question of the illegality of the ultimum senatus consultum, for Cicero’s quibble that the Gracchan law only protected the lives of cives, and that individuals specified by the Senate had been declared hostes,[1352] is an argument in a circle. It is this latter possibility which the Gracchan law denied; and though common sense might interpret certain overt acts as a sign of war against society, no degree of treason could ipso jure make a citizen into an enemy unless that treason had been proved in a court of law.

More justifiable than the power which we have just considered was the police-control which the Senate exercised in Rome. Here, as in other matters of administration, its attention was confined to great and exceptional emergencies. In the absence of all facilities for the expression of public opinion in Rome, except through the medium of a magistrate, the ancient trade guilds (collegia artificum) formed convenient centres for electioneering in the democratic interest. The fact that towards the close of the Republic their weight was thrown into the anti-senatorial scale led the government to regard their existence as inimical to public order. A decree of the Senate of the year 64 B.C. summarily dissolved all but the most venerable guilds which were supposed to derive their origin from Numa;[1353] and this sudden suppression may be regarded as a last step in a long career of administrative interference, no record of which has been preserved by history. Private political clubs, on the other hand, such as were known by the names of sodalitates and decuriati, did not come under the immediate cognisance of the magistrate; for their coercion the Senate had to procure the passing of a law.[1354] But minor details connected with bribery and corruption were within its competence. It infringed the inviolability of the magistrate’s house by allowing search to be made there for incriminating proof of corruption, and it directed that whoever should be guilty of harbouring professional election agents (divisores) at his dwelling should be liable to a vote of censure and possible prosecution.[1355]

If we now turn from the corrective to the administrative activity of the Senate, we shall find that this was exhibited chiefly in the departments of foreign relations, finance, and religion.

The primary spheres of foreign activity are the declaration of war, the making of peace, and the framing of alliances. All these powers belonged of right to the people, and, as regards the first, there was never any question that the Senate’s position was merely that of a constant adviser. The two latter powers merge into one another, for a state that was not on some terms of alliance with Rome was, according to the rude notions of the prevailing international law, an enemy of the Republic. There appear at intervals during the Republic signs of a keen but advantageous controversy as to whether the right to conclude binding treaties in the name of the Republic was possessed by the imperator in the field, as well as by Senate and people. To profit by the oath of a general when it entailed success, to disavow it when it meant failure, and in this case to hand the unfortunate commander, who had saved Roman lives but not Roman honour, bound and naked as a scapegoat to the enemy, were the convenient results of this condition of juristic doubt. The Caudine Forks in Samnium, Numantia in Spain, and the neighbourhood of Suthul in Numidia saw Roman generals and their deluded adversaries equal victims of this controversy.[1356] But the opinion finally prevailed that without the consent of the Senate and the people no sworn treaty (foedus) could be binding.[1357] The practice as to the division of this authority between the council and the assembly varied from time to time. In the earliest period a treaty of peace seems to be within the competence of the magistrate, and therefore of the Senate; in the constitution of the middle Republic, as revealed to us by Polybius, such an agreement is always submitted to the people for ratification,[1358] but the close of Republican history shows cases where the Senate alone is mentioned as the deciding authority.[1359]