Chapter III: The Equalization of the Orders, and the New Aristocracy (2)

But notwithstanding these enlargements of the powers of the burgess-assemblies, their practical influence on state affairs began, particularly towards the close of this period, to wane. First of all, the extension of the bounds of Rome deprived her primary assembly of its true basis. As an assembly of the freeholders of the community, it formerly might very well meet in sufficiently full numbers, and might very well know its own wishes, even without discussion; but the Roman burgess-body had now become less a civic community than a state. The fact that those dwelling together voted also with each other, no doubt, introduced into the Roman comitia, at least when the voting was by tribes, a sort of inward connection and into the voting now and then energy and independence; but under ordinary circumstances the composition of the comitia and their decision were left dependent on the person who presided or on accident, or were committed to the hands of the burgesses domiciled in the capital. It is, therefore, quite easy to understand how the assemblies of the burgesses, which had great practical importance during the first two centuries of the republic, gradually became a mere instrument in the hands of the presiding magistrate, and in truth a very dangerous instrument, because the magistrates called to preside were so numerous, and every resolution of the community was regarded as the ultimate legal expression of the will of the people. But the enlargement of the constitutional rights of the burgesses was not of much moment, inasmuch as these were less than formerly capable of a will and action of their own, and there was as yet no demagogism, in the proper sense of that term, in Rome. Had any such demagogic spirit existed, it would have attempted not to extend the powers of the burgesses, but to remove the restrictions on political debate in their presence; whereas throughout this whole period there was undeviating acquiescence in the old maxims, that the magistrate alone could convoke the burgesses, and that he was entitled to exclude all debate and all proposal of amendments. At the time this incipient breaking up of the constitution made itself felt chiefly in the circumstance that the primary assemblies assumed an essentially passive attitude, and did not on the whole interfere in government either to help or to hinder it.

The Magistrates. Partition and Weakening of the Consular Powers

As regards the power of the magistrates, its diminution, although not the direct design of the struggles between the old and new burgesses, was doubtless one of their most important results. At the beginning of the struggle between the orders or, in other words, of the strife for the possession of the consular power, the consulate was still the one and indivisible, essentially regal, magistracy; and the consul, like the king in former times, still had the appointment of all subordinate functionaries left to his own free choice. At the termination of that contest its most important functions --jurisdiction, street-police, election of senators and equites, the census and financial administration --were separated from the consulship and transferred to magistrates, who like the consul were nominated by the community and occupied a position far more co-ordinate than subordinate. The consulate, formerly the single ordinary magistracy of the state, was now no longer even absolutely the first. In the new arrangement as to the ranking and usual order of succession of the public offices the consulate stood indeed above the praetorship, aedileship, and quaestorship, but beneath the censorship, which--in addition to the most important financial duties --was charged with the adjustment of the rolls of burgesses, equites, and senators, and thereby wielded a wholly arbitrary moral control over the entire community and every individual burgess, the humblest as well as the most prominent. The conception of limited magisterial power or special function, which seemed to the original Roman state-law irreconcilable with the conception of supreme office, gradually gained a footing and mutilated and destroyed the earlier idea of the one and indivisible -imperium-. A first step was already taken in this direction by the institution of the standing collateral offices, particularly the quaestorship;(14) it was completely carried out by the Licinian laws (387), which prescribed the functions of the three supreme magistrates, and assigned administration and the conduct of war to the two first, and the management of justice to the third. But the change did not stop here. The consuls, although they were in law wholly and everywhere co-ordinate, naturally from the earliest times divided between them in practice the different departments of duty (-provinciae-). Originally this was done simply by mutual concert, or in default of it by casting lots; but by degrees the other constituent authorities in the commonwealth interfered with this practical definition of functions. It became usual for the senate to define annually the spheres of duty; and, while it did not directly distribute them among the co-ordinate magistrates, it exercised decided influence on the personal distribution by advice and request. In an extreme case the senate doubtless obtained a decree of the community, definitively to settle the question of distribution;(15) the government, however, very seldom employed this dangerous expedient. Further, the most important affairs, such as the concluding of peace, were withdrawn from the consuls, and they were in such matters obliged to have recourse to the senate and to act according to its instructions. Lastly, in cases of extremity the senate could at any time suspend the consuls from office; for, according to an usage never established by law but never violated in practice, the creation of a dictatorship depended simply upon the resolution of the senate, and the fixing of the person to be nominated, although constitutionally vested in the nominating consul, really under ordinary circumstances lay with the senate.

Limitation of the Dictatorship

The old unity and plenary legal power of the -imperium- were retained longer in the case of the dictatorship than in that of the consulship. Although of course as an extraordinary magistracy it had in reality from the first its special functions, it had in law far less of a special character than the consulate. But it also was gradually affected by the new idea of definite powers and functions introduced into the legal life of Rome. In 391 we first meet with a dictator expressly nominated from theological scruples for the mere accomplishment of a religious ceremony; and though that dictator himself, doubtless in formal accordance with the constitution, treated the restriction of his powers as null and took the command of the army in spite of it, such an opposition on the part of the magistrate was not repeated on occasion of the subsequent similarly restricted nominations, which occurred in 403 and thenceforward very frequently. On the contrary, the dictators thenceforth accounted themselves bound by their powers as specially defined.

Restriction as to the Accumulation and the Reoccupation of Offices

Lastly, further seriously felt restrictions of the magistracy were involved in the prohibition issued in 412 against the accumulation of the ordinary curule offices, and in the enactment of the same date, that the same person should not again administer the same office under ordinary circumstances before an interval of ten years had elapsed, as well as in the subsequent regulation that the office which practically was the highest, the censorship, should not be held a second time at all (489). But the government was still strong enough not to be afraid of its instruments or to desist purposely on that account from employing those who were the most serviceable. Brave officers were very frequently released from these rules,(16) and cases still occurred like those of Quintus Fabius Rullianus, who was five times consul in twenty-eight years, and of Marcus Valerius Corvus (384-483) who, after he had filled six consulships, the first in his twenty-third, the last in his seventy-second year, and had been throughout three generations the protector of his countrymen and the terror of the foe, descended to the grave at the age of a hundred.

The Tribunate of the People as an Instrument of Government

While the Roman magistrate was thus more and more completely and definitely transformed from the absolute lord into the limited commissioner and administrator of the community, the old counter-magistracy, the tribunate of the people, was undergoing at the same time a similar transformation internal rather than external. It served a double purpose in the commonwealth. It had been from the beginning intended to protect the humble and the weak by a somewhat revolutionary assistance (-auxilium-) against the overbearing violence of the magistrates; it had subsequently been employed to get rid of the legal disabilities of the commons and the privileges of the gentile nobility. The latter end was attained. The original object was not only in itself a democratic ideal rather than a political possibility, but it was also quite as obnoxious to the plebeian aristocracy into whose hands the tribunate necessarily fell, and quite as incompatible with the new organization which originated in the equalization of the orders and had if possible a still more decided aristocratic hue than that which preceded it, as it was obnoxious to the gentile nobility and incompatible with the patrician consular constitution. But instead of abolishing the tribunate, they preferred to convert it from a weapon of opposition into an instrument of government, and now introduced the tribunes of the people, who were originally excluded from all share in administration and were neither magistrates nor members of the senate, into the class of governing authorities.

While in jurisdiction they stood from the beginning on an equality with the consuls and in the early stages of the conflicts between the orders acquired like the consuls the right of initiating legislation, they now received--we know not exactly when, but presumably at or soon after the final equalization of the orders--a position of equality with the consuls as confronting the practically governing authority, the senate. Hitherto they had been present at the proceedings of the senate, sitting on a bench at the door; now they obtained, like the other magistrates and by their side, a place in the senate itself and the right to interpose their word in its discussions. If they were precluded from the right of voting, this was simply an application of the general principle of Roman state-law, that those only should give counsel who were not called to act; in accordance with which the whole of the acting magistrates possessed during their year of office only a seat, not a vote, in the council of the state.(17) But concession did not rest here. The tribunes received the distinctive prerogative of supreme magistracy, which among the ordinary magistrates belonged only to the consuls and praetors besides--the right of convoking the senate, of consulting it, and of procuring decrees from it.(18) This was only as it should be; the heads of the plebeian aristocracy could not but be placed on an equality with those of the patrician aristocracy in the senate, when once the government had passed from the clan-nobility to the united aristocracy. Now that this opposition-college, originally excluded from all share in the public administration, became--particularly with reference to strictly urban affairs--a second supreme executive and one of the most usual and most serviceable instruments of the government, or in other words of the senate, for managing the burgesses and especially for checking the excesses of the magistrates, it was certainly, as respected its original character, absorbed and politically annihilated; but this course was really enjoined by necessity. Clearly as the defects of the Roman aristocracy were apparent, and decidedly as the steady growth of aristocratic ascendency was connected with the practical setting aside of the tribunate, none can fail to see that government could not be long carried on with an authority which was not only aimless and virtually calculated to put off the suffering proletariate with a deceitful prospect of relief, but was at the same time decidedly revolutionary and possessed of a--strictly speaking --anarchical prerogative of obstruction to the authority of the magistrates and even of the state itself. But that faith in an ideal, which is the foundation of all the power and of all the impotence of democracy, had come to be closely associated in the minds of the Romans with the tribunate of the plebs; and we do not need to recall the case of Cola Rienzi in order to perceive that, however unsubstantial might be the advantage thence arising to the multitude, it could not be abolished without a formidable convulsion of the state. Accordingly with genuine political prudence they contented themselves with reducing it to a nullity under forms that should attract as little attention as possible. The mere name of this essentially revolutionary magistracy was still retained within the aristocratically governed commonwealth--an incongruity for the present, and for the future, in the hands of a coming revolutionary party, a sharp and dangerous weapon. For the moment, however, and for a long time to come the aristocracy was so absolutely powerful and so completely possessed control over the tribunate, that no trace at all is to be met with of a collegiate opposition on the part of the tribunes to the senate; and the government overcame the forlorn movements of opposition that now and then proceeded from individual tribunes, always without difficulty, and ordinarily by means of the tribunate itself.

The Senate. Its Composition

In reality it was the senate that governed the commonwealth, and did so almost without opposition after the equalization of the orders. Its very composition had undergone a change. The free prerogative of the chief magistrates in this matter, as it had been exercised after the setting aside of the old clan-representation,(19) had been already subjected to very material restrictions on the abolition of the presidency for life.(20)

A further step towards the emancipation of the senate from the power of the magistrates took place, when the adjustment of the senatorial lists was transferred from the supreme magistrates to subordinate functionaries--from the consuls to the censors.(21) Certainly, whether immediately at that time or soon afterwards, the right of the magistrate entrusted with the preparation of the list to omit from it individual senators on account of a stain attaching to them and thereby to exclude them from the senate was, if not introduced, at least more precisely defined,(22) and in this way the foundations were laid of that peculiar jurisdiction over morals on which the high repute of the censors was chiefly based.(23) But censures of that sort--especially since the two censors had to be at one on the matter --might doubtless serve to remove particular persons who did not contribute to the credit of the assembly or were hostile to the spirit prevailing there, but could not bring the body itself into dependence on the magistracy.

But the right of the magistrates to constitute the senate according to their judgment was decidedly restricted by the Ovinian law, which was passed about the middle of this period, probably soon after the Licinian laws. That law at once conferred a seat and vote in the senate provisionally on every one who had been curule aedile, praetor, or consul, and bound the next censors either formally to inscribe these expectants in the senatorial roll, or at any rate to exclude them from the roll only for such reasons as sufficed for the rejection of an actual senator. The number of those, however, who had been magistrates was far from sufficing to keep the senate up to the normal number of three hundred; and below that point it could not be allowed to fall, especially as the list of senators was at the same time that of jurymen. Considerable room was thus always left for the exercise of the censorial right of election; but those senators who were chosen not in consequence of having held office, but by selection on the part of the censor--frequently burgesses who had filled a non-curule public office, or distinguished themselves by personal valour, who had killed an enemy in battle or saved the life of a burgess--took part in voting, but not in debate.(24) The main body of the senate, and that portion of it into whose hands government and administration were concentrated, was thus according to the Ovinian law substantially based no longer on the arbitrary will of a magistrate, but indirectly on election by the people. The Roman state in this way made some approach to, although it did not reach, the great institution of modern times, representative popular government, while the aggregate of the non-debating senators furnished--what it is so necessary and yet so difficult to get in governing corporations--a compact mass of members capable of forming and entitled to pronounce an opinion, but voting in silence.

Powers of the Senate

The powers of the senate underwent scarcely any change in form. The senate carefully avoided giving a handle to opposition or to ambition by unpopular changes, or manifest violations, of the constitution; it permitted, though it did nor promote, the enlargement in a democratic direction of the power of the burgesses. But while the burgesses acquired the semblance, the senate acquired the substance of power --a decisive influence over legislation and the official elections, and the whole control of the state.

Its Influence in Legislation

Every new project of law was subjected to a preliminary deliberation in the senate, and scarcely ever did a magistrate venture to lay a proposal before the community without or in opposition to the senate's opinion. If he did so, the senate had--in the intercessory powers of the magistrates and the annulling powers of the priests--an ample set of means at hand to nip in the bud, or subsequently to get rid of, obnoxious proposals; and in case of extremity it had in its hands as the supreme administrative authority not only the executing, but the power of refusing to execute, the decrees of the community. The senate further with tacit consent of the community claimed the right in urgent cases of absolving from the laws, under the reservation that the community should ratify the proceeding--a reservation which from the first was of little moment, and became by degrees so entirely a form that in later times they did not even take the trouble to propose the ratifying decree.

Influence on the Elections

As to the elections, they passed, so far as they depended on the magistrates and were of political importance, practically into the hands of the senate. In this way it acquired, as has been mentioned already,(25) the right to appoint the dictator. Great regard had certainly to be shown to the community; the right of bestowing the public magistracies could not be withdrawn from it; but, as has likewise been already observed, care was taken that this election of magistrates should not be constructed into the conferring of definite functions, especially of the posts of supreme command when war was imminent. Moreover the newly introduced idea of special functions on the one hand, and on the other the right practically conceded to the senate of dispensation from the laws, gave to it an important share in official appointments. Of the influence which the senate exercised in settling the official spheres of the consuls in particular, we have already spoken.(26) One of the most important applications of the dispensing right was the dispensation of the magistrate from the legal term of his tenure of office--a dispensation which, as contrary to the fundamental laws of the community, might not according to Roman state-law be granted in the precincts of the city proper, but beyond these was at least so far valid that the consul or praetor, whose term was prolonged, continued after its expiry to discharge his functions "in a consul's or praetor's stead" (-pro consule- -pro praetore-). Of course this important right of extending the term of office --essentially on a par with the right of nomination--belonged by law to the community alone, and at the beginning was in fact exercised by it; but in 447, and regularly thenceforward, the command of the commander-in-chief was prolonged by mere decree of the senate. To this was added, in fine, the preponderating and skilfully concerted influence of the aristocracy over the elections, which guided them ordinarily, although not always, to the choice of candidates agreeable to the government.

Senatorial Government

Finally as regards administration, war, peace and alliances, the founding of colonies, the assignation of lands, building, in fact every matter of permanent and general importance, and in particular the whole system of finance, depended absolutely on the senate. It was the senate which annually issued general instructions to the magistrates, settling their spheres of duty and limiting the troops and moneys to be placed at the disposal of each; and recourse was had to its counsel in every case of importance. The keepers of the state-chest could make no payment to any magistrate with the exception of the consul, or to any private person, unless authorized by a previous decree of the senate. In the management, however, of current affairs and in the details of judicial and military administration the supreme governing corporation did not interfere; the Roman aristocracy had too much political judgment and tact to desire to convert the control of the commonwealth into a guardianship over the individual official, or to turn the instrument into a machine.

That this new government of the senate amidst all its retention of existing forms involved a complete revolutionizing of the old commonwealth, is clear. That the free action of the burgesses should be arrested and benumbed; that the magistrates should be reduced to be the presidents of its sittings and its executive commissioners; that a corporation for the mere tendering of advice should seize the inheritance of both the authorities sanctioned by the constitution and should become, although under very modest forms, the central government of the state--these were steps of revolution and usurpation. Nevertheless, if any revolution or any usurpation appears justified before the bar of history by exclusive ability to govern, even its rigorous judgment must acknowledge that this corporation timeously comprehended and worthily fulfilled its great task. Called to power not by the empty accident of birth, but substantially by the free choice of the nation; confirmed every fifth year by the stern moral judgment of the worthiest men; holding office for life, and so not dependent on the expiration of its commission or on the varying opinion of the people; having its ranks close and united ever after the equalization of the orders; embracing in it all the political intelligence and practical statesmanship that the people possessed; absolute in dealing with all financial questions and in the guidance of foreign policy; having complete power over the executive by virtue of its brief duration and of the tribunician intercession which was at the service of the senate after the termination of the quarrels between the orders--the Roman senate was the noblest organ of the nation, and in consistency and political sagacity, in unanimity and patriotism, in grasp of power and unwavering courage, the foremost political corporation of all times--still even now an "assembly of kings," which knew well how to combine despotic energy with republican self-devotion. Never was a state represented in its external relations more firmly and worthily than Rome in its best times by its senate. In matters of internal administration it certainly cannot be concealed that the moneyed and landed aristocracy, which was especially represented in the senate, acted with partiality in affairs that bore upon its peculiar interests, and that the sagacity and energy of the body were often in such cases employed far from beneficially to the state. Nevertheless the great principle established amidst severe conflicts, that all Roman burgesses were equal in the eye of the law as respected rights and duties, and the opening up of a political career (or in other words, of admission to the senate) to every one, which was the result of that principle, concurred with the brilliance of military and political successes in preserving the harmony of the state and of the nation, and relieved the distinction of classes from that bitterness and malignity which marked the struggle of the patricians and plebeians. And, as the fortunate turn taken by external politics had the effect of giving the rich for more than a century ample space for themselves and rendered it unnecessary that they should oppress the middle class, the Roman people was enabled by means of its senate to carry out for a longer term than is usually granted to a people the grandest of all human undertakings--a wise and happy self-government.

Notes for Book II Chapter III

1. The hypothesis that legally the full -imperium- belonged to the patrician, and only the military -imperium- to the plebeian, consular tribunes, not only provokes various questions to which there is no answer--as to the course followed, for example, in the event of the election falling, as was by law quite possible, wholly on plebeians --but specially conflicts with the fundamental principle of Roman constitutional law, that the -imperium-, that is to say, the right of commanding the burgess in name of the community, was functionally indivisible and capable of no other limitation at all than a territorial one. There was a province of urban law and a province of military law, in the latter of which the -provocatio- and other regulations of urban law were not applicable; there were magistrates, such as the proconsuls, who were empowered to discharge functions simply in the latter; but there were, in the strict sense of law, no magistrates with merely jurisdictional, as there were none with merely military, -imperium-. The proconsul was in his province, just like the consul, at once commander-in-chief and supreme judge, and was entitled to send to trial actions not only between non-burgesses and soldiers, but also between one burgess and another. Even when, on the institution of the praetorship, the idea rose of apportioning special functions to the -magistratus maiores-, this division of powers had more of a practical than of a strictly legal force; the -praetor urbanus- was primarily indeed the supreme judge, but he could also convoke the centuries, at least for certain cases, and could command an army; the consul in the city held primarily the supreme administration and the supreme command, but he too acted as a judge in cases of emancipation and adoption--the functional indivisibility of the supreme magistracy was therefore, even in these instances, very strictly adhered to on both sides. Thus the military as well as jurisdictional authority, or, laying aside these abstractions foreign to the Roman law of this period, the absolute magisterial power, must have virtually pertained to the plebeian consular tribunes as well as to the patrician. But it may well be, as Becker supposes (Handb. ii. 2, 137), that, for the same reasons, for which at a subsequent period there was placed alongside of the consulship common to both orders the praetorship actually reserved for a considerable time for the patricians, even during the consular tribunate the plebeian members of the college were -de facto- kept aloof from jurisdiction, and so far the consular tribunate prepared the way for the subsequent actual division of jurisdiction between consuls and praetors.

2. I. VI. Political Effects of the Servian Military Organization

3. The defence, that the aristocracy clung to the exclusion of the plebeians from religious prejudice, mistakes the fundamental character of the Roman religion, and imports into antiquity the modern distinction between church and state. The admittance of a non-burgess to a religious ceremony of the citizens could not indeed but appear sinful to the orthodox Roman; but even the most rigid orthodoxy never doubted that admittance to civic communion, which absolutely and solely depended on the state, involved also full religious equality. All such scruples of conscience, the honesty of which in themselves we do not mean to doubt, were precluded, when once they granted to the plebeians -en masse- at the right time the patriciate. This only may perhaps be alleged by way of excuse for the nobility, that after it had neglected the right moment for this purpose at the abolition of the monarchy, it was no longer in a position subsequently of itself to retrieve the neglect (II. I. The New Community).

4. Whether this distinction between these "curule houses" and the other families embraced within the patriciate was ever of serious political importance, cannot with certainty be either affirmed or denied; and as little do we know whether at this epoch there really was any considerable number of patrician families that were not yet curule.

5. II. II. The Valerio-Horatian Laws

6. I. XII. Foreign Worships

7. II. I. Senate,

8. II. I. Senate, II. III. Opposition of the Patriciate

9. II. II. Legislation of the Twelve Tables

10. II. III. Equivalence Law and Plebiscitum

11. The statements as to the poverty of the consulars of this period, which play so great a part in the moral anecdote-books of a later age, mainly rest on a misunderstanding on the one hand of the old frugal economy--which might very well consist with considerable prosperity --and on the other hand of the beautiful old custom of burying men who had deserved well of the state from the proceeds of penny collections --which was far from being a pauper burial. The method also of explaining surnames by etymological guess-work, which has imported so many absurdities into Roman history, has furnished its quota to this belief (-Serranus-).

12. II. II. The Valerio-Horatian Laws

13. II. III. Equivalence Law and Plebiscitum

14. II. I. Restrictions on the Delegation of Powers

15. II. III. Increasing Powers of the Burgesses

16. Any one who compares the consular Fasti before and after 412 will have no doubt as to the existence of the above-mentioned law respecting re-election to the consulate; for, while before that year a return to office, especially after three or four years, was a common occurrence, afterwards intervals of ten years and more were as frequent. Exceptions, however, occur in very great numbers, particularly during the severe years of war 434-443. On the other hand, the principle of not allowing a plurality of offices was strictly adhered to. There is no certain instance of the combination of two of the three ordinary curule (Liv. xxxix. 39, 4) offices (the consulate, praetorship, and curule aedileship), but instances occur of other combinations, such as of the curule aedileship and the office of master of the horse (Liv. xxiii. 24, 30); of the praetorship and censorship (Fast. Cap. a. 501); of the praetorship and the dictatorship (Liv. viii. 12); of the consulate and the dictatorship (Liv. viii. 12).

17. II. I. Senate

18. Hence despatches intended for the senate were addressed to Consuls, Praetors, Tribunes of the Plebs, and Senate (Cicero, ad Fam. xv. 2, et al.)

19. I. V. The Senate

20. II. I. Senate

21. II. III. Censorship

22. This prerogative and the similar ones with reference to the equestrian and burgess-lists were perhaps not formally and legally assigned to the censors, but were always practically implied in their powers. It was the community, not the censor, that conferred burgess-rights; but the person, to whom the latter in making up the list of persons entitled to vote did not assign a place or assigned an inferior one, did not lose his burgess-right, but could not exercise the privileges of a burgess, or could only exercise them in the inferior place, till the preparation of a new list. The same was the case with the senate; the person omitted by the censor from his list ceased to attend the senate, as long as the list in question remained valid--unless the presiding magistrate should reject it and reinstate the earlier list. Evidently therefore the important question in this respect was not so much what was the legal liberty of the censors, as how far their authority availed with those magistrates who had to summon according to their lists. Hence it is easy to understand how this prerogative gradually rose in importance, and how with the increasing consolidation of the nobility such erasures assumed virtually the form of judicial decisions and were virtually respected as such. As to the adjustment of the senatorial list undoubtedly the enactment of the Ovinian -plebiscitum- exercised a material share of influence--that the censors should admit to the senate "the best men out of all classes."

23. II. III. The Burgess-Body. Its Composition

24. II. III. Complete Opening Up of Magistracies and Priesthoods

25. II. III. Restrictions as to the Accumulation and the Reoccupation of Offices

26. II. III. Partition and Weakening of Consular Powers